drop-test consisting of a 6-foot (1.8-m) drop of a 250-pound (113-kg)
weight. In addition, these systems must limit the initial arresting
forces to not more than 2,000 pounds (8.9 kN), with a duration not to
exceed 2 milliseconds, with any subsequent arresting forces imposed on
the falling employee limited to not more than 1,000 pounds (4.5kN).
These systems must withstand a more rigorous drop test than other
positioning device systems because of their potential for greater free
fall distances. OSHA has already adopted this approach in paragraph
(b)(2) of the shipyard employment standards at Sec.  1915.160,
Positioning device systems. A note applicable to proposed paragraphs
(e)(1)(i) and (e)(1)(ii) indicates that window cleaners' positioning
systems meeting the tests outlined in Appendix D to proposed Sec.
1910.140 are considered to be in compliance with these provisions.
    Proposed paragraph (e)(1)(iii) addresses criteria for lineman's
body belt and pole strap systems. Although positioning equipment used
in electric power transmission and distribution work is not intended to
be used as insulation from live parts, positioning straps could come
into contact with live parts while an employee is working. Thus, it is
still important for this equipment to provide some level of insulation.
Proposed paragraphs (e)(1)(iii)(A) and (e)(1)(iii)(B) would require
positioning straps to be capable of passing dielectric and leakage
current tests. This provision is equivalent to existing Sec.
1926.959(b)(1). The voltages listed in these paragraphs are alternating
current. The note following proposed paragraph (e)(1)(iii) indicates
that equivalent direct current tests would also be acceptable.
    The remaining requirements in proposed paragraph (e)(2) contain
criteria applicable only to window cleaner's belts, anchorages, and
other components of window cleaner's positioning systems. There are no
specific requirements for this type of personal fall protection system
in existing OSHA standards. Rather, OSHA enforces the general
requirement to have fall protection, and relies on national consensus
standards for the criteria for such systems. The proposed requirements
will enhance compliance and reduce hazards by clarifying exactly what
requirements apply to positioning systems used for window cleaning. All
of these requirements are based on the national consensus standard,
ANSI/IWCA I-14.1-2001, Window Cleaning Safety, and address the design,
strength, and installation of window cleaners' positioning systems.
OSHA believes that these proposed criteria, in conjunction with the
proposed general criteria for all personal fall protection systems
(Sec.  1910.140(c)), provide a reasonable and necessary level of safety
for employees using these systems.
    OSHA notes that all of these requirements were proposed in the 1990
rulemaking. There was no substantive comment on the proposed revisions
even though OSHA asked for specific comment as to whether existing
buildings have window cleaning anchors that meet these standards and,
if not, what would be the cost of coming into compliance. OSHA
particularly raised concern about one proposed provision--paragraph
(e)(2)(iii) of the current proposal--which requires that window
cleaning anchors and the structures to which they were attached support
a 6,000 pound (26.5 kN) load, noting that there was some concern that
the 6,000 pounds (26.5 N) might be too restrictive. OSHA believes that
window cleaner's belts and their associated anchors are not used as
commonly as they once were. However, since there are buildings where
these systems are still used, OSHA proposes these minimal requirements
to protect employees.
    Also, OSHA proposes to add two appendices to Sec.  1910.140. These
appendices, which are non-mandatory, would provide specific information
and examples pertaining to the types of equipment regulated in this
proposed standard. Appendix C provides useful information and guidance
concerning the use of personal fall arrest systems. The information
concerns the selection and use of personal fall arrest systems
including considerations for testing, employee training, instruction,
and inspection. Appendix D provides test methods for personal fall
arrest systems and positioning device systems. OSHA specifically
requests comments on whether or not this proposed appendix should
include any test methods with the final rule; update the test methods
proposed; or include other testing sources. OSHA also seeks comment on
whether these proposed appendices will prove helpful in complying with
the proposed provisions. Additionally, the Agency requests comment
whether any of the non-mandatory language in Appendix C or D should be
included in the requirements of Sec.  1910.140.
    Finally, OSHA is proposing to require employers to conduct a hazard
assessment as required by Sec.  1910.132(d), and to follow the training
requirements set out in Sec.  1910.132(f).

V. Preliminary Economic and Initial Regulatory Flexibility Screening
Analysis

A. Introduction

    OSHA has determined that this proposed standard governing
occupational exposure to slip, trip, and fall hazards on walking and
working surfaces is significant under Executive Order 12866 (Sept. 30,
1993). Accordingly, the Office of Regulatory Analysis within OSHA has
prepared this Preliminary Economic and Initial Regulatory Flexibility
Screening Analysis (PEA) for the proposed standard. In conducting the
PEA, OSHA has, to the extent possible given the available resources,
endeavored to meet the requirements of OMB's Circular A-4 (OMB, 2003),
a guidance document for regulatory agencies preparing economic analyses
under Executive Order 12866.
    This PEA addresses issues related to the costs, benefits,
technological and economic feasibility and economic impacts (including
small business impacts) of the Agency's proposed revisions to subpart
D, Walking-

Working Surfaces, and subpart I, Personal Protective Equipment. The
analysis also evaluates regulatory alternatives to the final rule. This
rule has been reviewed by the Office of Information and Regulatory
Affairs in the Office of Management and Budget, as required by
executive order.
    The purpose of the PEA is to:
     Identify the establishments and industries potentially
affected by the proposed rule;
     Estimate current exposures to slip, trip, and fall hazards
in general industry and assess the technologically feasible methods of
controlling these exposures;
     Estimate the benefits of the rule in terms of the
reductions in the number of deaths and injuries that employers will
achieve by coming into compliance with the standard;
     Evaluate the costs and economic impacts that
establishments in the regulated community will incur to achieve
compliance with the proposed standard;
     Assess the economic feasibility of the rule for affected
industries; and
     Evaluate the principal regulatory alternatives to the
proposed rule that OSHA has considered.
    The Regulatory Flexibility Act (as amended in 1996) (SBA, 1996; 5
U.S.C 601) requires that an initial regulatory flexibility analysis
(IRFA) be prepared if an agency determines that a proposed rule will
impose a significant economic impact on a substantial number of small
entities. To determine the need for an IRFA, OSHA voluntarily prepared
an initial regulatory flexibility screening analysis that identifies
and estimates the impacts of the proposed standard on small businesses.
In addition to background information on the affected workforce and the
hazards to which they are exposed, this subsection of the economic
analysis describes the need for a standard for walking-working surfaces
and the criteria that guide OSHA in conducting a feasibility analysis
for a safety standard. On the basis of the screening analysis,
presented in the last subsection of this PEA, OSHA certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small entities.
    This PEA contains the following subsections in addition to this
Introduction:
     Assessing the Need for Regulation.
     Industry Profile.
     Benefits, Net Benefits, and Cost Effectiveness.
     Technological Feasibility.
     Costs of Compliance.
     Economic Impacts.
     Initial Regulatory Flexibility Screening Analysis.
    To develop the PEA, OSHA relied considerably on (1) the record
created throughout the history of this rulemaking, and (2) an analysis
by OSHA's contractor, Eastern Research Group (ERG) (ERG, 2007 Ex. 6).
Reasons Why Action by the Agency Is Being Considered
    Earlier in this preamble OSHA discussed the major changes that are
being proposed to the existing standards for walking-working surfaces
and personal protective equipment (subparts D and I of part 1910). The
proposed standards are designed to prevent a significant number of
slips, trips, and falls that result in injuries and fatalities in
general industry, including falls from ladders, roofs, scaffolds, and
stairs. Some examples from OSHA's inspection database (OSHA, 2007) best
illustrate the kinds of accidents the standards are designed to prevent
and how the revised standards will prevent them.
    On October 22, 2000, a head repairman for a specialty metals
producer in Pennsylvania was replacing a water cooling panel
(approximately 8-ft high by 12-ft long) on a basic oxygen furnace
vessel. To access the panel, he placed a ladder on an 8-in. diameter
pipe. When the employee attempted either to gain access to the panel or
to secure the ladder, he fell 22 feet to the ground. He sustained a
blunt force trauma injury to his head, and was killed. OSHA cited and
fined the employer for a violation of Sec.  1910.23(c)(1), Protection
of open-sided floors, platforms, and runways, and Sec.
1910.25(d)(2)(i), Use of ladders, along with other standards. OSHA
believes that the proposed clarifications of the requirements for the
safe use of ladders and the duty to have fall protection will help to
prevent accidents such as the one described above.
    In a window cleaning operation on July 20, 2000, two employees were
working from boatswain's chairs suspended from a roof by two
transportable roof rollers, and lowering their chairs down the side of
the building using controlled descent devices. A third employee was on
the roof pushing the rollers back and forth to move his coworkers from
window to window. The third employee was moving the roller on one end
of the building when one of its wheels slipped off the edge of the
parapet wall, causing the rollers, which were tied together, to fall
between six and seven stories to the ground. The first two employees,
whose lifelines were only attached to the suspension point on the
rollers, also fell to the ground and sustained serious injuries. When
one of the rollers went over the edge, the third employee was
catapulted off the roof and fell approximately 84 feet to the ground.
He died from the fall. In the investigation, OSHA determined that
neither of the rollers was anchored to the roof, and cited the employer
for violating the general duty clause (section 5(a)(1)) of the OSH Act.
OSHA believes that compliance with the requirements for rope descent
systems in the proposed standard for scaffolds (Sec.  1910.27(c)) will
help to prevent this type of accident.
    A 49-year-old service technician fractured five vertebrae and
eventually died from the injuries received when he fell 11 feet from a
fixed ladder to a concrete landing while performing air conditioning
service work on the roof of a shopping mall. OSHA's investigation of
the August 24, 2004, accident identified the likely cause of the
incident as the absence of uniform spacing between the ladder rungs
throughout the climb (the space between the top two rungs/steps was 28
inches whereas the space between lower rungs was much narrower).
Proposed Sec.  1910.23(b)(2) requires that, with a few exceptions,
rungs, cleats, and steps of ladders be spaced not less than 10 inches
(25 cm) apart nor more than 14 inches (36 cm) apart, as measured
between the center lines of the rungs, cleats, and steps. OSHA believes
that compliance with this proposed provision will prevent accidents
such as the one described here.
    As a final example, on October 22, 1999, an employee in a South
Dakota feed mill was atop a soybean storage bin gauging the level of
the contents when he fell approximately 24 feet onto a concrete
surface. The employee suffered head and upper body injuries that
resulted in his death. The subsequent OSHA investigation resulted in
citations for violations of the general duty clause and provisions in
existing subpart D on floors, platforms, and railings. OSHA believes
that the proposed revisions to subpart D will remove any ambiguity in
the scope or intent of the rule, which would help to prevent falls from
storage bins and related surfaces.
    When establishing the need for an occupational safety and health
standard, OSHA must evaluate available data to determine whether
workers will suffer a material impairment of their health or functional
capacity as a result of being exposed to the safety or health hazard at
issue. Prior to promulgating a standard, the Agency must also determine
that ``a significant risk of harm exists and can be eliminated or
lessened by a change in practices.'' See Industrial Union Dep't v.
American Petroleum Institute, 448 U.S. 607 (1980).

See also 58 FR 16612 (March 20, 1993) (OSHA must conclude that the
standard it is promulgating will substantially reduce a significant
risk of material harm).
    OSHA has determined that the best available data for quantitatively
estimating the risks associated with slips, trips, and falls in general
industry come from the BLS injury and illness survey and census data.
OSHA has relied on federal survey and census data from recent years to
determine the risk to similarly exposed employees across industry in
other safety standards regulating employee exposure to risks (e.g.,
Confined Spaces in Construction 72 FR 67351 (November 28, 2007)). It is
also an accepted scientific approach used by other regulatory and non-
regulatory entities in making decisions regarding public safety.
    As previously discussed in section II of this preamble, OSHA has
preliminarily determined that hazards associated with walking and
working on elevated, slippery, or other surfaces pose significant risks
to employees and that the proposed revisions to subparts D and I are
reasonable and necessary to protect affected employees from those
risks. The Agency estimates that full compliance with the revised
walking-working surfaces standards will prevent 20 fatalities and 3,706
lost workday injuries annually. This constitutes a substantial
reduction of significant risk of material harm for the exposed
population of approximately 5.3 million employees in general industry.
Feasibility
    The Agency must show that the standards it promulgates are
technologically and economically feasible. See 58 FR 16612. A standard
is technologically feasible if the protective measures required already
exist, can be brought into existence with available technology, or can
be created with technology that can reasonably be designed and
developed.\10\ Protective measures required by safety standards
generally involve the use of engineering and work practice controls.
Engineering controls include, for example, guardrails, toeboards, or
other barriers that protect employees from exposures to slip, trip, and
fall hazards. Work practice controls are techniques that employees use
to perform their jobs (for example, safe climbing techniques on
ladders). Administrative controls (such as job rotation) and personal
protective equipment (PPE) (such as harnesses and lanyards) may also be
used to comply with safety standards.
---------------------------------------------------------------------------

    \10\ See Society of the Plastics Industry v. OSHA, 509 F.2d,
1301, 1309 (1975); USWA v. Marshall, 647 F.2d, 1189 (1980); American
Textile Manufacturers v. Donovan, 452 U.S. 490 (1981); and Building
and Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258
(1988).
---------------------------------------------------------------------------

    A standard is economically feasible if the cost of meeting the
standard does not threaten the existence or competitive structure of an
industry. An OSHA standard may be economically feasible even if it
imposes costs that will put some marginal firms out of business.\11\ As
discussed in more detail below, OSHA has preliminarily concluded that
the proposed revisions to subparts D and I are both economically and
technologically feasible.
---------------------------------------------------------------------------

    \11\ See Industrial Union Dept. v. Hodgson, 499 F.2d 467 (1974);
USWA v. Marshall, 647 F.2d, 1189 (1980); and American Textile
Manufacturers v. Donovan, 452 U.S. 490 (1981).
---------------------------------------------------------------------------

Methodology
    OSHA has developed an economic analysis to estimate the benefits
and costs of the proposed revisions to subparts D and I. Since 2002,
under the direction of the Office and Management and Budget, the Agency
has ``monetized'' the value of the injuries, illnesses, and fatalities
expected to be prevented through the promulgation of new standards,
i.e., it has monetized the value of expected benefits. This provides a
common metric for comparing expected benefits and costs.
    For all of its occupational safety and health standards, OSHA
estimates benefits and costs as annual figures. The Agency believes
that this is the simplest and best way to assess the impact of its
standards. Computing annual estimates focuses the Agency's analysis on
information from current conditions and recent years, which the Agency
deems the best, i.e., most accurate and reliable, information. OSHA
typically uses a time period of ten years for its analysis, unless
there are significant long-term effects not captured within a ten-year
timeframe. In the case of this proposed rule for subparts D and I,
adding additional years to the timeframe of the analysis would not
change any major policy conclusions.
    To isolate and describe only the effects of a new standard, the
Agency carefully distinguishes, for both benefits and costs, the change
induced by the new standard without regard to the ongoing level of
compliance with existing standards. Injuries or fatalities preventable
through compliance with existing regulations are not included in OSHA's
assessment of the benefits expected from compliance with the new
standard. Similarly, the Agency does not include the cost of complying
with existing standards in its assessment of what it will cost
employers to comply with the new standard. To make a standard's costs
and benefits consistent for comparison, the Agency assumes that all
employers will fully comply with the proposed standard. OSHA's analysis
also assumes that all costs are incurred in the first year following
promulgation of the final standard (ongoing costs are incurred annually
beginning in Year 1) and that benefits result immediately.
    The Agency employs a ``willingness-to-pay'' (WTP) approach in
estimating benefits. This is a two-step process in which, for the
proposed revisions to subparts D and I, 16 years of accident data
collected by the Bureau of Labor Statistics were studied to estimate
the number of fatalities and injuries associated with slips, trips, and
falls, and also the number of such accidents that would be avoided by
full compliance with the proposed standard. Secondly, the Agency uses
values from the WTP approach to produce a monetary value of benefits.
The WTP approach applied by many economic studies estimates the ``value
of a statistical life'' (VSL) based on data collected about job risks
and the ``risk premium'' in wages that is paid to employees in riskier
jobs. The VSL is used as a metric by many government regulatory
authorities, such as the National Highway Traffic Safety Administration
and the Environmental Protection Agency, but is particularly
appropriate for occupational regulations since it is derived from
occupational risks and wages.
    The Agency's calculation of benefits and costs, summarized in the
table on net benefits (Table V-14 in this PEA), is implicitly one that
looks at society as a whole. Estimated costs are borne by all affected
employers, while benefits from the WTP approach are market-derived
estimates of employees' valuations of job risk and reward (economic
feasibility, discussed in Subsection G below, focuses on employer and
industry economic impacts without regard to benefits). The VSL
represents to some extent the value to an employee of taking on
additional job risks and describes the value to employees of avoiding
injury and death.
    The primary alternative to a WTP approach is a ``cost-of-injury''
(COI) approach. A COI approach accounts for the various costs to all
parties associated with an injury or fatality, including medical costs,
the costs of work disruption from accidents and accident
investigations, indirect costs to employers (e.g., absenteeism, hiring
costs), lost wages or job opportunities,

and rehabilitation expenses. The COI approach results in ascribing
costs and benefits to many involved entities: The employer, the
employee, workers' compensation programs, medical insurance, Federal
disability programs, governmental bodies, and taxpayers, for example. A
COI approach does not capture a value for loss of life, pain and
suffering, impacts on families, or similar parameters, and for that
reason the Agency believes that the VSL is more consistent with the
purposes of the OSH Act.

B. Assessing the Need for Regulation

Introduction
    Employees throughout general industry are exposed to slip, trip,
and fall hazards that can and do cause serious injury and death. As
detailed below, OSHA estimates that, on average, approximately 216,000
serious (lost-workday) injuries and 279 fatalities occur annually among
these workers; of these totals, 63,000 lost-workday injuries and 230
fatalities would be directly affected by the proposed standard.
Although some of these incidents may have been prevented with better
compliance with existing safety standards, research and analyses
conducted by OSHA have found that many preventable injuries and
fatalities would continue to occur even if employers were fully
complying with the existing standards. Relative to full compliance with
the existing standards, OSHA estimates that an additional 3,706 lost-
workday injuries and 20 fatalities would be prevented each year through
full compliance with the proposed standards.
    An additional benefit of this rulemaking is that it will provide
updated, clear, and consistent safety standards for walking and working
surfaces and personal fall protection equipment. Most of the existing
OSHA standards for walking-working surfaces are over 30 years old and
inconsistent with both national consensus standards and more recently
promulgated OSHA standards addressing fall protection.
    Presently, OSHA's standards for fall protection on walking-working
surfaces in general industry differ from the comparable standards for
construction work. In most instances, employees use similar work
practices to perform similar tasks, irrespective of whether they are
technically doing construction or general industry work. Whether OSHA's
construction or general industry standards apply to a particular job
depends upon whether the employer is altering the system (construction
work) or maintaining the system (general industry work). For example,
replacing an elevated ventilation system at an industrial site would be
construction work if it involves upgrading the system, but general
industry work if it involves replacing the system with the same model.
Since the work practices used by the employees would most likely be
identical in both situations, it is desirable for OSHA's general
industry and construction standards to be as consistent as possible.
Under OSHA's existing requirements, however, different requirements
might apply to similar work practices, e.g., an employer overhauling
two or more ventilation systems may have to comply with two different
sets of OSHA requirements if one project is considered construction and
another general industry. The existing inconsistencies between the
construction and general industry standards create difficulties for
employers attempting to develop appropriate work practices for their
employees. For this reason, employers and employees have told OSHA that
they would like the two standards to match more closely. This proposal
attempts to achieve that result.
    Other benefits of the proposal that OSHA has neither quantified nor
monetized include the following. First, OSHA has not attempted to
estimate the number of fall injuries prevented that do not result in
lost workdays. Second, OSHA has not attempted to estimate the
improvements in efficiency of compliance associated with clarifying the
existing rule and bringing it into closer correspondence with current
voluntary standards.
    OSHA's benefits estimates are most sensitive when it comes to
estimating the percentage of current injuries and fatalities that can
be avoided by full compliance with the proposed standard. The true
benefits of the proposal depend on how well the cases reviewed
represent actual fall-related fatalities in general industry.
    The Agency believes that its estimate of annual fatalities
involving slips, trips, and falls (about 230) in general industry is
much less sensitive than the estimate of the percentage of fatalities
avoided, because the estimate of the annual number of baseline
fatalities is derived from 2 years of recent accident data with
averages corroborated by 11 prior years of data. Furthermore, because
OSHA believes that its benefits estimates are conservatively low,
training and work practices specified in this proposal would likely
improve the use and application of safety equipment, thereby further
reducing fatalities and injuries.
    In addition to estimating annualized costs using a discount rate of
seven percent, OSHA, for sensitivity purposes, applied an alternative
discount rate of three percent to up-front costs. Under the alternative
scenario of a three-percent discount rate, OSHA estimates that
annualized costs would decline from $173.2 million to $168.8 million.
For both this scenario and for the primary (seven-percent rate)
scenario, OSHA assumed that all costs (first-year and recurring) will
be incurred upon implementation of the final standard (i.e., there are
no phase-in provisions). OSHA is also assuming that the benefits
outlined in this section will accrue once the rule takes effect. Other
cost-related uncertainties are described in greater detail below in
section D of this PEA, and concern OSHA's estimates of the number of
buildings affected by, and the number of employees who would require
training under, this proposed standard.
    Before reaching the preliminary conclusion that this proposal is
necessary to reduce the number of fatalities and injuries occurring
among workers involved in activities that expose them to slips, trips,
and falls, and to make the applicable standards more clear and
consistent, OSHA considered many regulatory and non-regulatory
alternatives. These alternatives are discussed in the remainder of this
subsection.
Alternative Regulatory Approaches
    To determine the appropriate approach for addressing the
occupational risks associated with slips, trips, and falls in general
industry, OSHA considered many different factors and potential
alternatives. The Agency examined the incidence of injuries and
fatalities and their direct and underlying causes to ascertain where
existing standards needed to be strengthened. OSHA reviewed these
standards, assessed current practices in the industry, collected
information and comments from experts, and scrutinized the available
data and research.
    OSHA faces several constraints in determining appropriate
regulatory requirements. Under section 3(8) of the OSH Act, OSHA
standards must be ``reasonably necessary or appropriate to provide safe
or healthful employment and places of employment.'' Also, under section
6(b)(8) of the OSH Act, to the extent an OSHA standard differs
substantially from existing national consensus standards, the Agency
must explain why the OSHA standard will better effectuate the purposes
of the OSH Act. As noted elsewhere, OSHA standards must also be
technologically

and economically feasible and cost effective.
    The table below presents a summary of projected costs and benefits
for each section of the proposed standard.

----------------------------------------------------------------------------------------------------------------
                                                              Benefits
                                  ---------------------------------------------------------------      Costs
       Proposed requirement          Type of accident        Fatalities                             ($millions)
                                        prevented            prevented        Injuries prevented
----------------------------------------------------------------------------------------------------------------
Sec.   1910.22 General             Fall from floor,     1.0................  388................           $15.7
 Requirements.                      dock, or ground
                                    level.
                                   Fall from building   0.2................  13.................  ..............
                                    girders or other
                                    structural steel.
Sec.   1910.23 Ladders...........  Fall from ladder...  large fraction of    large fraction of               9.7
                                                         5.5.                 1,871.
                                   Fall from ship,      fraction of 1.4      fraction of 2......  ..............
                                    boat, n.e.c..
Sec.   1910.24 Step Bolts and      Fall from ladder...  small fraction of    small fraction of               3.7
 Manhole Steps.                                          5.5.                 1,871.
                                   Fall down stairs or  0.4................  846................  ..............
                                    steps.
Sec.   1910.27 Scaffolds.........  Fall from scaffold,  large fraction of    large fraction of              73.0
                                    staging.             6.7.                 174.
Sec.   1910.28 Duty to Have Fall   Fall from ladder...  small fraction of    small fraction of              0.09
 Protection.                                             5.5.                 1,871.
Sec.   1910.29 Fall Protection     Fall from building   0.2................  13.................             8.4
 Systems Criteria and Practices.    girders or other
                                    structural steel.
                                   Fall from ship,      fraction of 1.4....  fraction of 2.       ..............
                                    boat, n.e.c..
                                   Fall from scaffold,  small fraction of    small fraction of    ..............
                                    staging.             6.7.                 174.
Sec.   1910.30 Training            Multiple fall        fraction of          fraction of                    44.1
 Requirements.                      categories.          benefits for many    benefits for many
                                                         fall categories.     fall categories.
Sec.   1910.140 Fall Protection..  Multiple fall        fraction of          fraction of                    18.5
                                    categories.          benefits for many    benefits for many
                                                         fall categories.     fall categories.
----------------------------------------------------------------------------------------------------------------
Source: U.S. Dept. of Labor, OSHA, Directorate of Evaluation and Analysis, Office of Regulatory Analysis, 2010.

    A full discussion of the basis for the particular regulatory
requirements chosen is provided in section IV, Summary and Explanation
of the Proposed Rule, earlier in this preamble. The regulatory
alternatives considered by OSHA are discussed in the Initial Regulatory
Flexibility Screening Analysis later in this section of the preamble.
In that section, Table V-34 presents impacts associated with regulatory
alternatives for selected provisions in the proposed standard. OMB's
Circular A-4, Regulatory Analysis, recommends that agencies ``should
analyze at least three options: the preferred option; a more stringent
option that achieves additional benefits (and presumably costs more)
beyond those realized by the preferred option; and a less stringent
option that costs less (and presumably generates fewer benefits) than
the preferred option'' (p. 16). The preferred option is presented in
this NPRM. A less stringent alternative, rejected by OSHA, would
require training for a more limited number of fall-hazard categories;
the cost of this alternative would remain significant (but below the
cost of $44.1 million for the preferred alternative training proposal),
with a reduction in benefits relative to the preferred alternative.
    A more stringent alternative would require that cages, wells, and
landing platforms be provided for all fixed ladders, while disallowing
ladder safety devices; the cost of this alternative would be highly
significant, while the incremental benefits would be modest relative to
the preferred alternative. OSHA notes that in the 1990 NPRM, this
alternative was one of several provisions associated with the existing
standard for which OSHA provided an estimated cost; the annualized cost
for cages, wells, and other safety devices for fixed ladders was $1.6
billion in 1990 dollars. Though OSHA believes use of ladder-safety
devices has increased considerably since 1990, this more stringent
alternative would still probably be extremely expensive compared to the
proposed rule.
Alternative Nonregulatory Approaches
Introduction.
    The stated purpose of the OSH Act is to ``assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources.'' (5 U.S.C. 651.) This
congressional mandate provides the basis for OSHA's proposed rulemaking
on walking-working surfaces, which is designed to mitigate the
occupational hazards associated with slips, trips, and falls.
    Before issuing a standard, OSHA must assess whether there are
other, nonregulatory approaches available that may provide equal or
greater benefits. Executive Order 12866 directs regulatory agencies to
assess whether an unregulated private market can achieve the same level
of social benefits as that expected to result from federal regulation:

    Section 1. Statement of Regulatory Philosophy and Principles.
(a) The Regulatory Philosophy. Federal Agencies should promulgate
only such regulations as are required by law, are necessary to
interpret the law, or made necessary by compelling public need, such
as material failures of private markets to protect or improve the
health and safety of the public, the environment, or the well-being
of the American people. In deciding whether and how to regulate,
agencies should assess all costs and benefits of available
regulatory alternatives, including the alternative of not
regulating.

    The discussion below considers several nonregulatory alternatives
to OSHA's proposed rulemaking: Private market incentives, information
dissemination programs, tort liability options, and workers'
compensation programs.
    Private Market Incentives.
    Economic theory suggests that the need for government regulations
would be greatly reduced if private markets worked efficiently and
effectively to provide health and safety protections for employees. At
issue is whether the private market will be able to produce a level of
safety and health for employees that will be equal to or greater than
that potentially afforded by the proposed OSHA standards. In
particular, OSHA examined whether the level of risk of experiencing an
injury in an unregulated market would be at least as low as the level
of risk expected after completion of this proposed rulemaking for
walking-working surfaces.

    Theoretically, unregulated markets are capable of achieving an
efficient allocation of resources if certain assumptions are satisfied.
Necessary assumptions include perfect and free information, perfect and
costless mobility of labor and other factors of production, and an
absence of any externalities.
    A major conclusion of the ``perfect competition model'' of economic
theory is that, in the presence of full information about market
choices and outcomes, and with complete mobility of the factors of
production, the private market would produce an efficient allocation of
resources. In the presence of perfect and complete information
regarding occupational risks, labor markets would reflect the presence
of different degrees of risk across different industries, firms, and
occupations. In such a market, wage premiums would be paid to
compensate employees engaged in hazardous occupations for the added
risk they confront on the job.
    In this theoretical framework, wages would vary directly with the
riskiness of a job (other things being equal), and employers would have
an incentive to make investments to reduce occupational health and
safety risks to the extent employees would demand compensation for
being exposed to such risks. In other words, because employers would
have to pay their workers a premium to induce them to work in a risky
environment, employers would be willing to pay to make that environment
less risky by introducing technologies and practices that lower risks
to employees.
    In addition, a perfectly competitive market will theoretically lead
to the efficient allocation of resources only if all of the costs and
benefits (pecuniary and nonpecuniary) associated with the behavior of
market participants and with market transactions are fully borne by
those directly involved. In economic terms, this implies that there
will not be any negative externalities associated with economic
activities.
    If all of the costs associated with occupational safety and health
risks would in fact be internalized, then market decisions about
occupational safety and health conditions made by employers and
employees would be based on a consideration of the full social costs of
their economic actions. However, if some of the effects of these
actions are externalized (that is, some costs are not borne by
employers and employees but by other parties who are external to the
transaction), then those costs will not be adequately incorporated into
the decisions of managers and workers. The resultant market allocation
of resources can then be expected to be less efficient.
    Costs and other impacts that are imposed on society and are not
borne directly by the economic participants involved in an activity or
transaction are referred to as externalities. The existence of such
externalities is one reason why an unregulated private market often
fails to produce an efficient allocation of resources. The presence of
these externalities also implies that economic efficiency can
potentially be improved with regulatory interventions.
    In a theoretically perfect market without externalities, firms
would decide how much to spend on reducing safety and health risks
based on the full costs associated with the presence of such risks. The
costs include pain and suffering, impacts on the quality of the lives
of families, and effects on society as a whole. Employees would decide
whether they were willing to work in a particular job based on the
relative riskiness of the job and the extent to which they believe the
wages offered to them provide adequate compensation for these risks.
    Research conducted by OSHA and information from several other
sources show that many firms have responded to the risks posed to
employees by exposures to slip, trip, and fall hazards. Employers have
increasingly recognized the costs associated with these risks and have
implemented measures to reduce the occupational risks faced by their
employees. In fact, many risk control programs already implemented by
employers go beyond the requirements of the existing and proposed OSHA
standards. The fact that employers are implementing these programs
demonstrates that economic incentives exist, at least to some degree,
to motivate employers in the direction of reducing the risks associated
with occupational exposures to slip, trip, and fall hazards in general
industry.
    However, OSHA notes that many employers continue to fall short of
providing even minimum safety protections for their employees. Such
circumstances persist despite ongoing attempts by OSHA and other groups
to provide information and assistance to employers to increase
awareness and reduce the risks of working on surfaces where there are
exposures to slip, trip, and fall hazards. The benefits subsection of
this preliminary analysis shows that preventable injuries and
fatalities continue to occur every year. The evidence indicates that
market forces cannot alone curb occupational slip, trip, and fall risks
adequately.
    Among employees exposed to the hazards addressed by this proposed
rule, there does not appear to be any risk premium reflected in wage
rates that would differentiate between employers based on the extent of
risks faced by employees. In fact, there is some evidence that in the
affected industries, wages for employees in similar jobs performing
similar types of work are negatively correlated with the degree of risk
involved. For example, employees of host sites tend to earn more than
their counterparts working for contractors, and yet the fatality and
injury rate can often be higher among employees of contractors.\12\
---------------------------------------------------------------------------

    \12\ As evidence of this phenomenon, 254,550 general maintenance
and repair workers employed by manufacturers in 2007 earned a mean
hourly wage of $19.04 and suffered 4,610 lost-workday injuries and
illnesses, or 181 injuries or illnesses per 10,000 workers, while
45,040 general maintenance and repair workers employed in Other
Services in 2007 earned a mean hourly wage of $14.90 and experienced
1,150 lost-workday injuries and illnesses, or 255 injuries or
illnesses per 10,000 workers. See Bureau of Labor Statistics (BLS),
Occupational Employment Statistics, and BLS, Occupational Injuries
and Illnesses.
---------------------------------------------------------------------------

    There are a variety of reasons why employees may not be paid the
risk premiums that would theoretically be necessary to ensure that
markets provide efficient levels of expenditures on safety and health.
Employees have imperfect knowledge about the nature and magnitude of
occupational risk factors. Many employees are not likely to be fully
aware of the extent and nature of occupational risks associated with
different jobs and different employers at different points in time.
    Even if employees have adequate information regarding the risks of
occupational injuries, they may be unable to adequately incorporate
this information into their decisions about choosing a job or staying
on the job. Other factors and circumstances may affect employment
choices, including significant costs associated with job searches and
changing jobs.
    Assessing occupational risks for the purpose of determining the
acceptability of wages offered is made even more difficult when
differences in risk between two firms are significant but cannot be
readily observed or predicted over the pertinent time periods. If
differences in occupational risk between various establishments are not
fully incorporated into the employment decisions of employees, the wage
premiums paid for risky jobs will not accurately reflect the relative
occupational risks associated with specific jobs in different firms.
Thus, firms will have little incentive to individually reduce risk
beyond levels present in other firms.

    In addition, many employers may simply be unaware of the direct and
indirect costs associated with occupational risks. Some employers may
regard these costs as beyond their control or as part of general
overhead costs. Employers may also not be fully aware of the
availability of cost-effective ways of ameliorating or eliminating
these risks and reducing the corresponding costs.
    A significant problem that prevents risk premiums in an unregulated
market from achieving the theoretical results that may potentially
reduce occupational risks involves imperfections in the operation of
labor markets. Changing jobs can be costly, and in some circumstances
the costs may preclude a decision to change jobs solely on the basis of
the occupational health risks involved. Factors that may make job
changes particularly costly include nontransferability of occupational
skills or seniority within a company, the difficulty of acquiring
sufficient skills and abilities (i.e., human capital) to seek
alternative employment opportunities, the costs and uncertainty
associated with relocating to take advantage of better employment
opportunities, the existence of institutional factors such as the
nontransferability of pension plans and seniority rights, and the risk
of prolonged periods of unemployment.
    Often, differences in occupational risk between two firms must be
marked before an employee will change jobs on that basis. Therefore,
wage rates determined by a market in which the protection of
occupational safety and health is unregulated are unlikely to fully
compensate employees for occupational health and safety risks,
including those related to the risks of concern here.
Information Dissemination Programs
    OSHA and other organizations currently produce and disseminate a
considerable amount of information regarding the risks associated with
work on walking and working surfaces and the methods that can be used
to minimize slip, trip, and fall hazards. The dissemination of such
information would continue in conjunction with the promulgation of the
proposed standards. Alternatively, in lieu of issuing mandatory
standards, OSHA could rely on current or expanded information
dissemination programs to generate the incentives necessary to produce
further reductions in injuries and fatalities. Better informed
employees can more accurately assess the occupational risks associated
with different jobs, thereby facilitating those market interactions
that result in wage premiums for relatively risky occupations.
    There are several reasons, however, why reliance on information
dissemination programs will not yield the level of social benefits
achievable through compliance with the proposed rules for walking-
working surfaces. Foremost, there are no reliable incentives or
mechanisms that would ensure that appropriate and sufficiently detailed
information could be produced, or that such information would actually
be distributed among, and relied upon by, employees. Furthermore, the
hazards addressed by this proposal are highly specific to individual
tasks and work environments. The development of accurate knowledge
about these occupational risks would require each employer to make
available specific information about the risks present in projects
expected to be undertaken in the future. The lack of adequate
incentives or mechanisms and the potentially large costs associated
with the collection and reporting of the necessary information makes
effective information dissemination difficult to implement in practice.
    In addition, even if employees are better informed about workplace
risks and hazards, other factors, such as barriers to labor mobility,
that contribute to market failure would still remain. Finally, as
argued above, employees may not be able to evaluate information about
long-term risks accurately when making employment decisions. Better
information, therefore, will not ensure that the market will produce
wage risk premiums in a manner that is consistent with an efficient
allocation of resources.
    Currently, in addition to the applicable OSHA standards, there are
consensus standards, voluntary guidelines, and other information
sources for preventing injuries and fatalities from slips, trips, and
falls on walking and working surfaces. Although many employers have
adopted the practices and procedures recommended by these sources, many
other employers have been less successful in the widespread
implementation of the recommendations in these voluntary guidelines.
The Costs of Compliance subsection of this PEA provides further
information regarding current compliance with specific elements in
sectors covered by the proposal.
    Thus, OSHA's experience and observations regarding slip, trip, and
fall hazards on walking-working surfaces show that, while improved
access to information about occupational risks can provide for more
rational decision-making in the private market, voluntary information
programs will not produce an adequately low level of occupational risk.
Tort Liability Options
    Employees are generally restricted from using tort law to force
employers to pay for costs and damages associated with fatalities and
injuries that occur on the job. Greater employee use of tort law in
seeking redress from injuries associated with the occupational hazards
addressed by this proposal is another possible nonregulatory
alternative to the proposed rule. If employees were able to effectively
sue their employers for damages caused by work-related hazards, and if
other conditions regarding the cost and availability of information,
knowledge and mobility of employees, and externalities are satisfied,
then the need for an OSHA standard would potentially be reduced or
eliminated.
    A tort may be described, in part, as a civil wrong (other than
breach of contract) for which the courts provide a remedy in the form
of an action for damages. The application of the tort system to
occupationally related injuries and illnesses would mean that an
employee whose disability resulted from exposure to a workplace risk
would sue the employer to recover damages. The tort system could thus
shift the liability for the direct costs of occupational injury from
the employee to the employer, at least under certain specific
circumstances.
    With limited exceptions, however, the tort system has not been a
viable alternative to regulation in dealings between employees and
employers, for a number of reasons. All States have legislation making
workers' compensation either the exclusive or principal legal remedy
available to employees. Generally, tort law can be applied only to
third-party producers or suppliers of hazardous products or equipment,
for example, asbestos products. It is often difficult, however, to
demonstrate that workplace injuries have been caused by defective or
negligently designed products or equipment.
    Moreover, legal proceedings generally fail to fully internalize
costs because of the substantial legal fees and uncertainties
associated with bringing court actions. In deciding whether to sue, the
victim must be sure that the potential award will exceed both the
expense and hardship of bringing the lawsuit. Legal expenses commonly
include a contingency fee for the plaintiff's lawyer, plus court fees
and the costs of accumulating evidence and

witnesses. The accused firm must also pay for its defense.
    In sum, the use of legal action as an alternative to regulation is
limited because of the expense, delays, and uncertainties involved, and
because under current state laws, workers' compensation will normally
be an exclusive remedy that will prevent an employee from filing a
suit. The tort system, therefore, does not serve adequately to protect
employees from exposure to risks in the workplace.
Workers' Compensation Programs
    The existing workers' compensation programs serve to partially
address the market failures that result in insufficient reductions in
occupational risks. An alternative to a mandatory standard would be a
continued reliance on these and other existing programs (including
possible modifications or enhancements to these programs) to address
occupational risk. The workers' compensation system was implemented in
part as a result of the perceived failure of the unregulated market to
compel employers to sufficiently reduce occupational health and safety
risks and to compensate employees for bearing those risks. The system
seeks to shift some of the burden of the costs associated with
occupational injuries and illnesses from workers to employers. By so
doing, workers' compensation requirements can ensure that more of the
costs of occupational injuries and illnesses are incorporated into
decisions of employers even if employees do not have full information
regarding their risks or are unable to receive full wage compensation
for such risks. Originally designed to force more of the social costs
of occupational injuries and illnesses to be internalized, the workers'
compensation program has in practice fallen short of fully achieving
this goal and does not fully compensate employees for occupationally
related injuries and illnesses.
    Compensation tends to be especially inadequate in permanent
disability cases, in part because of time limits on benefit
entitlements and in part because of the failure of the system to adjust
benefits for changes in an employee's expected earnings over time.
Several states restrict permanent, partial, and total disability
benefits either by specifying a maximum number of weeks for which
benefits can be paid or by imposing a ceiling on dollar benefits. Both
temporary and permanent disability payments are commonly limited by
imposing a ceiling on the income per week that can be paid. In
addition, under workers' compensation, no award is made for pain and
suffering.
    Although rules vary by state, temporary disability income is
designed in most states to replace two-thirds of the worker's before-
tax income. However, most states place a maximum and a minimum on the
amount of money paid out to the employee, regardless of his or her
actual former income.
    The Workers Compensation Research Institute (WCRI) has studied the
extent to which workers' compensation replaces after-tax income in 19
states. These studies show that temporary total disability payments
replace between 80 and 100 percent of the after-tax income of the
majority of employees in all of the states examined (WCRI, 1993). From
3 to 44 percent of employees receive less than 80 percent of their
after-tax income, and from 0 to 16 percent receive more than 100
percent of their previous after-tax income (as a result of the
``floor'' on payments). In 15 of the 19 states examined, more employees
receive less than 80 percent of their former after-tax income than
receive more than 100 percent of their former income. WCRI does not
provide estimates of the average replacement rates for all employees in
a State. However, based on these data, it seems reasonable to assume
that, on average, workers receive no more than 90 percent of their
after-tax income while on temporary disability.
    In addition to not fully replacing after tax income, workers'
compensation payments, which are not taxable, provide no replacement
for tax losses to the Federal, State or local government as a result of
an illness. This loss is properly considered part of the social losses
associated with an illness or injury. Typically taxes, including State
and Federal income taxes and employee and employer contribution to
social security taxes, will be approximately 30 percent of income. The
taxes not paid when an individual is unable to work thus add an
additional 30 percent of worker income as losses associated with
injuries and illnesses not covered by workers' compensation.
    In summary, workers' compensation often covers less than 65 percent
of the financial losses associated with the costs of injuries, and does
not cover any portion of losses due to pain and suffering. Thus, even
if the financial costs were fully internalized by employers, workers'
compensation would be insufficient to assure adequate economic
incentives to address work-related injuries and illnesses. For workers'
compensation to be able to internalize costs of work-related injuries
and illnesses, it would be necessary for the costs an employer pays for
workers' compensation to be directly related to the employer's risk of
causing work-related injuries or illnesses.
    Most workers' compensation programs nominally include the
employer's injury experience as a factor in determining the level of
the employer's insurance premiums. However, the majority of firms are
not rated individually for their safety and health record; that is,
they are not ``experience rated.'' For example, small firms often are
ineligible for experience rating because of the high year-to-year
variance in their claim rates. Such firms are class rated, and rate
reductions are granted only if the experience of the entire class
improves. Segregation of loss experience into classes is somewhat
arbitrary, and an individual firm may be classified with other firms
that have substantially different accident rates. Even when firms have
an experience rating, the premiums paid may not accurately reflect
their true degree of risk. In addition, a firm's experience rating is
generally based on the benefits paid to ill or injured workers, not on
the firm's safety and health record or on the actual risks faced by
employees. Thus, in some cases employers may have more of an incentive
to reduce premiums by contesting claims than by initiating safety and
health measures.
    For employers who rely on workers' compensation insurance, the
payment of premiums represents the employer's major cost for the
occurrence of occupational injuries and illnesses. However, the
mechanism for determining an employer's workers' compensation premium
frequently fails to reflect the real costs associated with a particular
employer's record. As a result, efforts made by an employer to reduce
the incidence of occupational injuries and illnesses are not
necessarily reflected in reduced workers' compensation premiums.
Similarly, firms that devote fewer resources to promoting employee
safety and health often may not incur commensurately higher workers'
compensation costs. Consequently, the program does not provide direct
incentives for most employers to reduce the occupational health and
safety risks in their workplaces.
    Finally, workers' compensation is an insurance mechanism through
which participants spread and share the risk of injury and illness
claims, and the costs associated with occupational injuries and
illnesses are often spread throughout the economy through risk sharing
stemming from participation in health insurance programs. For

example, some direct costs may not be incurred or attributed to
employers because many employees go to their private physician rather
than the company's physician for work-related injuries and illnesses,
even though there are systemic mechanisms in place to ensure that work-
related injuries are treated through the workers' compensation system.
The social burden of adverse health effects is also shared by taxpayer-
supported programs such as welfare, Social Security disability and
death benefits, and Medicare. Employers have, therefore, less incentive
to avoid such losses than they would if they were directly liable for
all such claims. This transfer of risk is another reason why the market
does not fully internalize the social costs of occupationally related
injuries and illnesses.
    The workers' compensation system provides economic incentives for
larger firms, especially those that self-insure for workers'
compensation, because these firms internalize a greater portion of the
true costs of the work-related injuries and illnesses incurred by their
employees. Thus, larger firms can generally be expected to do more to
reduce the costs associated with occupational risks than smaller firms.
    In summary, the workers' compensation system suffers from several
defects that seriously reduce its effectiveness in providing incentives
for firms to create safe and healthful workplaces. First, because the
scheduled benefits are often significantly less than the actual losses
experienced by injured or ill workers and the social losses experienced
by tax payers, the existence of workers' compensation programs limits
an employer's liability to levels significantly below the actual costs
of the injury or illness. Second, premiums for individual firms are
often unrelated or only loosely related to that firm's risk
environment. The firm, therefore, does not receive the proper economic
incentives and consequently fails to invest sufficient resources in
reducing workplace injuries and illnesses. The economic costs not borne
by the employer are imposed on the employee directly or on society
through social welfare programs.
Summary
    OSHA has determined that certain employees are exposed to
occupational risks associated with slip, trip, and fall hazards on
walking and working surfaces. The private market has not been effective
in sufficiently reducing this level of risk due to a lack of complete
information about safety risks in specific work environments, limits on
worker mobility, and other factors that contribute to the failure of
markets to provide an efficient allocation of resources. Options for
improving the operations of markets include information dissemination
programs, tort liability options, and workers' compensation programs.
After considering each of these options, OSHA has concluded that none
of them will provide the level of benefits achievable by this proposal
to amend subparts D and I.

C. Profile of Affected Industries, Firms, and Workers

Introduction
    This subsection presents OSHA's preliminary profile of the firms,
establishments, and employees within the industries affected by OSHA's
proposed revision to subparts D and I and is based upon data that were
assembled and organized by OSHA's contractor, Eastern Research Group
(ERG, 2007, Ex. 6).
Affected Industries and Employees
    Revised subparts D and I apply to employers and industries covered
by OSHA's standards for general industry in 29 CFR part 1910.
Similarly, all other subparts in part 1910 affected by these proposed
revisions to OSHA's walking-working surfaces standards would impose
requirements on employers in general industry under OSHA's
jurisdiction. Excluded are establishments in the agriculture,
construction, maritime (longshoring, marine terminal, and shipyards),
and mining industries. Also excluded are employee tasks on surfaces
that, due to location or operational status, fall outside of OSHA's
jurisdiction. An example of the latter category is employee exposure to
fall hazards when railroad rolling stock is traveling on rails, or
trucks are traveling on highways; those operations are regulated by the
Department of Transportation.
    The walking and working surfaces covered by the standards are
present in nearly every establishment. Therefore, OSHA assumes that the
number of establishments and employees potentially affected by subpart
D includes all establishments and employees in general industry. Table
V-1 shows the total number of these establishments and employees
potentially affected by revisions to subpart D. The data are listed in
order by North American Industry Classification System (NAICS) industry
code.
    Table V-1 provides economic profile statistics for the industries
covered by the proposed standards. Industries are classified and listed
by 4-digit North American Industry Classification System (NAICS)
industry code (OMB, 2002). Basing its economic profile on the U.S.
Census' Statistics of U.S. Businesses for 2006 (``Census data''), OSHA
estimates that 6.7 million establishments employing 112 million
employees would be affected by the proposed standards.
    These revisions to the fall protection standards are estimated to
primarily affect approximately 5.3 million employees engaged in
installation, maintenance and repair operations in general industry.
While it is possible that some other employees may be affected by the
revisions to the standards, this represents the main group affected by
the standards, and not all of these will automatically be affected. To
identify such employees, OSHA identified general industry employees in
occupational codes involving construction, installation, maintenance,
and repair-related occupational codes. This approach assumes that
employees in construction occupations who are employed by general
industry employers rather than construction employers are routinely
engaged in what OSHA labels maintenance, rather than construction,
activities. The methodology for deriving these estimates is discussed
in the ERG report (ERG, 2007, Ex. 6).
    OSHA also used Census \13\ data on payroll and receipts to estimate
average revenue per establishment in 2006 for each 4-digit NAICS
industry. The methodology for deriving these estimates is discussed
later in this PEA.
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    \13\ In this PEA, ``Census'' refers to the U.S. Census Bureau.
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    Parts of the proposed standard that cover ladders, scaffolds,
manhole steps, and other working surfaces are most likely to directly
affect employees engaged in maintenance and related activities. To
estimate the numbers of such employees, OSHA relied on data from Bureau
of Labor Statistics' (BLS) Occupational Employment Statistics (OES)
survey that documents employment by detailed occupation on a 4-digit
NAICS industry basis. The BLS data represent the only source of
industry-specific statistics on detailed occupational employment
totals. OSHA used these data to estimate the numbers of employees in
construction, and in maintenance, installation, and repair occupations
in each industry and the overall number of production employees (ERG
2007, Ex. 6).\14\
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    \14\ Production workers include those in building and grounds;
construction; installation, maintenance, and repair; production; and
material moving occupations. It is conceivable that employees in
construction and related occupations, even though not employed by
establishments in construction industries, might on occasion perform
work that would be regulated by OSHA under its construction
standards in Sec.  1926. To the extent this is true, their employers
might also be required to meet the requirements for fall protection
and walking and working surfaces as specified in the construction
standards.
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    Because industry employment totals reported by the OES are not
identical to those estimated by the U.S. Census Bureau, OSHA used the
ratios of production to total employment as reported by OES and
multiplied total employment as reported by Census by this ratio to
estimate the numbers of production employees and employees in
maintenance-related occupations for each NAICS industry covered by the
proposed subpart D and I standards. As shown in Table V-1, an estimated
28.0 million employees are employed in production occupations, while an
estimated 5.3 million are employed in construction, installation, and
maintenance and repair occupations.
Profile of Potentially Affected Small Entities
    To assemble the data that are necessary for a screening analysis to
judge potential impacts as prescribed by the Small Business Regulatory
Enforcement Fairness Act (SBREFA), OSHA developed profiles of small
entities in the industries covered by the proposed OSHA standards for
subparts D and I. First, ERG used the Small Business Administration's
(SBA) small business criterion for each industry and Census data (taken
from the Statistics of U.S. Businesses) on employment, payroll, and
receipts by entity size to estimate the numbers of entities and
associated employment meeting the SBA definitions (ERG, 2007, Ex. 6).
Where the SBA small business criterion was specified as a revenue
threshold, OSHA used the Census data to associate that revenue with a
given employment size. OSHA's estimates of SBA-based employment-size
criteria are shown in the first column in Table V-2. The table shows,
by NAICS category, the number of entities and employees and average
receipts per entity for business units that meet the employment-size
criterion. The numbers of at-risk employees are estimated assuming the
same percentage of total employment as that derived in Table V-1.
    Based on analysis by ERG (ERG, 2007, Ex. 6), OSHA also used the
Census data to develop a profile of entities that employ fewer than 20
employees. These estimates are shown in Table V-3.
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Employees Using Fall Protection
    Based on analysis by ERG (ERG, 2007, Ex. 6), OSHA estimated the
numbers of employees using fall protection equipment by extrapolating
results obtained from OSHA's 1999 PPE Cost Survey. This establishment-
based survey provided industry-specific estimates of the numbers of
workers who used various types of personal protective equipment,
including body harnesses and body belts.\15\ The survey reported the
percent of employees in each industry (SIC classification) that used
these equipment types. ERG extrapolated the survey findings by first
associating the SIC industries covered by the survey with 4-digit NAICS
industries and then multiplying the equipment use percentages by total
employment (presented above in Table V-1).
---------------------------------------------------------------------------

    \15\ For a description of the survey, see Eastern Research
Group, PPE Cost Survey: Final Report. Task Order 3, Base Year, DOL
Contract No. J-9-F-9-0010. June 23, 1999 (Exhibit 14, OSHA Docket S-
042: Costs of Personal Protective Equipment). Back support belts and
similar ergonomic devices were explicitly excluded from the types of
personal protective equipment investigated by the survey.
---------------------------------------------------------------------------

    Because the same employees might use both body harnesses and body
belts, OSHA used the maximum value of the two percentages in deriving
these estimates. For example, if for a given industry, six percent of
employees were estimated using body harnesses while four percent were
estimated to use body belts, OSHA used the larger statistic (six
percent) as its estimate of the share of employees using fall
protection. Also, the survey's design did not permit industry-specific
estimates for all industries. For example, only aggregated estimates
are available for several groups of service, wholesale, and retail
trade industries. To make the fall protection estimates consistent with
the numbers of at-risk employees, OSHA constrained the estimated number
of employees using fall protection in any industry to be less than or
equal to the numbers of employees in construction, installation,
maintenance, and repair occupations shown in Table V-1. Table V-4
presents, by 4-digit NAICS industry, OSHA's estimate of the number of
employees using fall protection equipment. Overall, an estimated 1.6
million employees in general industry use fall protection.
Wage Rates
    As will be discussed in detail later in this PEA, OSHA anticipates
that much of the cost impact of the proposed standard is associated
with the time requirements for additional training and inspections.
Estimates for these costs depend on the opportunity cost of the labor
hours that would otherwise be devoted to productive activities. Such
opportunity costs are typically valued in terms of employees' hourly
wages, adjusted for benefit and fringe costs. ERG relied on average
hourly earnings as reported by the BLS Occupational Employment
Statistics Survey and constructed a weighted average hourly wage for
the specific occupations comprising production employment. ERG
similarly constructed an average hourly production supervisor wage for
each industry. These wages were then inflated by a factor to account
for fringe benefits. According to a recent BLS survey, this mark-up
factor averaged 43.5 percent.\16\ The loaded wage rates applied by OSHA
in this preliminary economic analysis are shown in Table V-5.
---------------------------------------------------------------------------

    \16\ BLS, Employer Costs for Employee Compensation--June 2008.
Accessed September 10, 2008.
---------------------------------------------------------------------------

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BILLING CODE 4510-29-C

D. Benefits, Net Benefits, Cost Effectiveness, and Sensitivity Analysis

    This subsection reviews the populations in general industry that
are at risk of occupational injury or death due to hazards addressed by
this proposal, and assesses the potential benefits associated with the
proposed updates to subparts D and I. OSHA believes that compliance
with the proposed rule will yield substantial benefits in terms of
lives saved, injuries avoided, and reduced accident-related costs.
    As described in section C above, the employees affected by the
proposed standard work largely in construction, installation,
maintenance, and repair. According to the Bureau of Labor Statistics'
2008 Occupational Employment Statistics survey, there are approximately
112.0 million employees in industries within the scope of this
proposal; 5.3 million employees engaged in construction, installation,
maintenance, and repair operations in general industry that would be
directly affected by this proposal; and 1.6 million employees in
general industry using personal fall protection equipment. As explained
earlier, to account for all of these employees, OSHA identified
production employees classified in BLS occupational codes defining
construction, installation, maintenance, and repair in the following
industry sectors: Agriculture; oil and gas extraction; utilities;
manufacturing; wholesale trade; retail trade; transportation;
information; finance and insurance; real estate; professional,
scientific, and technical services; management of companies; enterprise
administration; education; health care; arts, entertainment, and
recreation; and other services. This approach assumes that employees in
construction occupations, but employed by general industry rather than
construction employers, are routinely engaged in what OSHA labels
maintenance (i.e., a general industry activity) rather than
construction activities. The methodology for deriving these estimates
is discussed in the ERG report (ERG, 2007, Ex. 6).
    This subsection first examines the available data on the number of
baseline injuries and fatalities among affected employees; then
assesses the extent to which the standard can prevent those injuries
and fatalities; and finally estimates some of the economic benefits
associated with the prevented injuries and fatalities. OSHA's proposed
standards for subpart D, Walking-Working Surfaces, and subpart I,
Personal Protective Equipment (Personal Fall Protection Systems), would
produce benefits to the extent compliance prevents injuries and
fatalities that would not be prevented by the existing OSHA standards.
Profile of Fall Accidents
Fall Fatalities
    OSHA examined fall fatalities using two databases. As a baseline
for determining the average number of fall fatalities per year, OSHA
examined data from the BLS Census of Fatal Occupational Injuries (CFOI)
for 2006 and 2007. To provide a more detailed breakdown of the kinds of
falls included in this total, OSHA examined CFOI data for the longer
period of 1992 to 2002.
    As shown in Table V-6, the BLS Census of Fatal Occupational
Injuries (CFOI) reported 285 and 267 fatal falls to lower levels for
2006 and 2007, respectively, in industries covered by the proposed
standard. Distinguished from the larger category of all falls--a set of
accidents that includes falls on the same level and jumps to a lower
level--the narrower category of falls to a lower level are the types of
falls directly addressed by OSHA's proposed standard. For purposes of
estimating the overall rate of fall fatalities for this benefits
analysis, OSHA took the average of these two years--276 fall fatalities
per year. Over the two-year period, industries in the professional,
scientific, technical, administrative, and support services (NAICS 541
and 561) accounted for 30 percent of the fatal falls, while the
manufacturing (NAICS 31-33) and transportation (NAICS 48) sectors
accounted for 10.9 and 6.0 percent of the fall fatalities,
respectively. BLS reported the highest number of fatal falls in NAICS
561, Administrative and Support Services. Although not shown in the
table, a large majority of these fatalities--82 percent for the two-
year period 2006-2007--occurred in the industry concerned with services
to buildings and dwellings (NAICS 5617).

                Table V-6--Fatalities From Falls to a Lower Level--General Industry, 2006 & 2007
----------------------------------------------------------------------------------------------------------------
                                                                                Number of fatalities
                 NAICS                              NAICS description            -------------------------------
                                                                                2006            2007
----------------------------------------------------------------------------------------------------------------
113....................................  Forestry and Logging...................               3               4
114....................................  Fishing, Hunting and Trapping..........               0               0
115....................................  Support Activities for Agriculture and                0               0
                                          Forestry.
211....................................  Oil and Gas Extraction.................               0               0
213111.................................  Oil and Gas Well Drilling..............               5               4
221....................................  Utilities..............................               0               0
311....................................  Food Manufacturing.....................               5               4
312....................................  Beverage and Tobacco Product                          0               0
                                          Manufacturing.
313....................................  Textile Mills..........................               0               0
314....................................  Textile Product Mills..................               0               0
315....................................  Apparel Manufacturing..................               0               0
316....................................  Leather and Allied Product                            0               0
                                          Manufacturing.
321....................................  Wood Product Manufacturing.............               7               0
322....................................  Paper Manufacturing....................               0               0
323....................................  Printing and Related Support Activities               0               0
324....................................  Petroleum and Coal Products                           0               0
                                          Manufacturing.
325....................................  Chemical Manufacturing.................               3               3
326....................................  Plastics and Rubber Products                          3               0
                                          Manufacturing.
327....................................  Nonmetallic Mineral Product                           3               0
                                          Manufacturing.
331....................................  Primary Metal Manufacturing............               0               0
332....................................  Fabricated Metal Product Manufacturing.              10               7
333....................................  Machinery Manufacturing................               0               0
334....................................  Computer and Electronic Product                       0               0
                                          Manufacturing.
335....................................  Electrical Equipment, Appliance, and                  0               0
                                          Component Manufacturing.

336....................................  Transportation Equipment Manufacturing.               7               4
337....................................  Furniture and Related Product                         0               0
                                          Manufacturing.
339....................................  Miscellaneous Manufacturing............               0               4
423....................................  Merchant Wholesalers, Durable Goods....               4               7
424....................................  Merchant Wholesalers, Nondurable Goods.              12               6
425....................................  Wholesale Electronic Markets and Agents               0               0
                                          and Brokers.
441....................................  Motor Vehicle and Parts Dealers........               4               0
442....................................  Furniture and Home Furnishings Stores..               0               0
443....................................  Electronics and Appliance Stores.......               0               0
444....................................  Building Material and Garden Equipment                6               4
                                          and Supplies Dealers.
445....................................  Food and Beverage Stores...............               5               0
446....................................  Health and Personal Care Stores........               0               0
447....................................  Gasoline Stations......................               0               0
448....................................  Clothing and Clothing Accessories                     0               0
                                          Stores.
451....................................  Sporting Goods, Hobby, Book, and Music                0               0
                                          Stores.
452....................................  General Merchandise Stores.............               0               0
453....................................  Miscellaneous Store Retailers..........               0               0
454....................................  Nonstore Retailers.....................               0               0
481....................................  Air Transportation.....................               0               0
482....................................  Railroads..............................               0               0
483....................................  Water Transportation...................               0               0
484....................................  Truck Transportation...................              11              18
485....................................  Transit and Ground Passenger                          0               0
                                          Transportation.
486....................................  Pipeline Transportation................               0               0
487....................................  Scenic and Sightseeing Transportation..               0               0
488....................................  Support Activities for Transportation..               0               4
492....................................  Couriers and Messengers................               0               0
493....................................  Warehousing and Storage................               4               5
511....................................  Publishing Industries (except Internet)               0               0
512....................................  Motion Picture and Sound Recording                    0               0
                                          Industries.
515....................................  Broadcasting (except Internet).........               0               0
516....................................  Internet Publishing and Broadcasting...               0               0
517....................................  Telecommunications.....................               6               3
518....................................  Internet Service Providers, Web Search                0               0
                                          Portals, and Data Processing Services.
519....................................  Other Information Services.............               0               0
521....................................  Monetary Authorities--Central Bank.....               0               0
522....................................  Credit Intermediation and Related                     0               0
                                          Activities.
523....................................  Securities, Commodity Contracts, and                  0               0
                                          Other Financial Investments and
                                          Related Activities.
524....................................  Insurance Carriers and Related                        3               0
                                          Activities.
525....................................  Funds, Trusts, and Other Financial                    0               0
                                          Vehicles.
531....................................  Real Estate............................              10               9
532....................................  Rental and Leasing Services............               0               0
533....................................  Lessors of Nonfinancial Intangible                    0               0
                                          Assets (except Copyrighted Works).
541....................................  Professional, Scientific, and Technical               7              10
                                          Services.
551....................................  Management of Companies and Enterprises               0               0
561....................................  Administrative and Support Services....              66              80
562....................................  Waste Management and Remediation                      5               0
                                          Services.
611....................................  Educational Services...................               0               0
621....................................  Ambulatory Health Care Services........               0               0
622....................................  Hospitals..............................               0               0
623....................................  Nursing and Residential Care Facilities               4               0
624....................................  Social Assistance......................               0               3
711....................................  Performing Arts, Spectator Sports, and                6               3
                                          Related Industries.
712....................................  Museums, Historical Sites, and Similar                0               0
                                          Institutions.
713....................................  Amusement, Gambling, and Recreation                   0               7
                                          Industries.
721....................................  Accommodation..........................               8               5
722....................................  Food Services and Drinking Places......               4               7
811....................................  Repair and Maintenance.................               6               4
812....................................  Personal and Laundry Services..........               0               0
813....................................  Religious, Grantmaking, Civic,                       11               7
                                          Professional, and Similar
                                          Organizations.
                                         Industry not specified \a\.............              57              55
                                                                                -------------------------------
    Total..............................  .......................................             285             267
----------------------------------------------------------------------------------------------------------------
\a\ Includes falls from ship, boat, not elsewhere classified. Source: U.S. Dept. of Labor, OSHA, Directorate of
  Evaluation and Analysis, Office of Regulatory Analysis, based on Bureau of Labor Statistics, Census of Fatal
  Occupational Injuries, 2006 and 2007.

    To assess the benefits of this rule, it is necessary to know not
only the total annual number of fall fatalities, but also the numbers
of various types of fall fatalities. Quantifying the various types of
fatal falls is necessary because the

proposal is expected to prevent fall fatalities to different degrees
for different kinds of falls. Table V-7 shows, for the eleven-year
period 1992 to 2002, the breakdown of fall fatalities by type of fall
based on CFOI data. As shown, falls to a lower level (distinguished
from falls on the same level) accounted for about 78 percent of total
fall fatalities. Overall, on average, falls to a lower level accounted
for 217 of the 279 fatal falls per year that occurred in general
industry establishments. On a sector-by-sector basis, falls to a lower
level as a percentage of all fatal falls ranged from 59 percent for the
retail trade sector to 95 percent for the agricultural services sector.
As the table also shows, fatal falls from ladders averaged 41 per year
over the eleven-year period, while fatal falls from scaffolds averaged
15 per year. The category of ``other'' falls to a lower level includes
falls from floors, docks, or ground level; falls from nonmoving
vehicles; and falls from building girders and other structural steel.

                    Table V-7--Fatal Falls by Type of Fall and Industry Sector, 1992 to 2002
----------------------------------------------------------------------------------------------------------------
                                                                      Falls to a lower level
                                                ----------------------------------------------------------------
          Industry sector            All falls                   From a                    From a
                                                    Total        ladder    From a roof    scaffold      Other
----------------------------------------------------------------------------------------------------------------
                                         Total Fatal Falls, 1992 to 2002
----------------------------------------------------------------------------------------------------------------
Agricultural services.............          366          348           47           11            3          287
Manufacturing.....................          665          535           80           64           75          316
Transportation, communications,             438          365           55            9            8          293
 electric, gas, and sanitary
 services.........................
Wholesale trade...................          196          163           22           10            0          131
Retail trade......................          318          188           73            9            0          106
Finance, insurance, and real                138          111           37           14            0           60
 estate...........................
                                   -----------------------------------------------------------------------------
Services..........................          944          672          141           84           77          370
                                   -----------------------------------------------------------------------------
    Total.........................        3,065        2,382          455          201          163        1,563
----------------------------------------------------------------------------------------------------------------
                                          Average Fatal Falls per Year
----------------------------------------------------------------------------------------------------------------
Agricultural services.............           33           32            4            1            0           26
Manufacturing.....................           60           49            7            6            7           29
Transportation, communications,              40           33            5            1            1           27
 electric, gas, and sanitary
 services.........................
Wholesale trade...................           18           15            2            1            0           12
Retail trade......................           29           17            7            1            0           10
Finance, insurance, and real                 13           10            3            1            0            5
 estate...........................
Services..........................           86           61           13            8            7           34
                                   -----------------------------------------------------------------------------
    Total.........................          279          217           41           18           15          142
----------------------------------------------------------------------------------------------------------------
Note: Titles for industry sectors are taken from the SIC system of industry categorization. Source: ERG, 2007,
  based on BLS, Census of Fatal Occupational Injuries, 1992-2002.

Fall Injuries
    Table V-8, based on BLS's 2007 Survey of Occupational Injuries and
Illnesses, shows the total number of lost workday injuries due to falls
in general industry, by type of fall. This table will form the basis
for OSHA's estimate of the number of lost-workday injuries prevented by
the proposal.
    Table V-9, based on BLS's 2007 Survey of Occupational Injuries and
Illnesses, provides additional details about the lost-workday injury
rates for the two major categories of falls: falls to a lower level and
falls to the same level. Excluding industry groups where the data may
have been incomplete, the combined fall injury rate ranges from a low
of 2.5 cases per 10,000 workers in NAICS 523 (Securities, Commodity
Contracts, and Other Financial Investments and Related Activities) to a
high of 73.5 per 10,000 employees in NAICS 481 (Air Transportation). Of
the 78 affected industries with reported fall injury data, 25 had fall
injury rates in excess of 30 cases per 10,000 employees, while 23 had
fall injury rates between 20 and 30 cases per 10,000 employees.
    Table V-10, also based on BLS's 2007 Survey of Occupational
Injuries and Illnesses, shows lost-workday fall-related injury rates by
specific type of fall, disaggregated by the major industry sectors
covered by the proposed standard. These statistics show that, unlike
fall fatalities, falls to a lower level represent a relatively small
share of injurious, non-fatal falls. For example, in manufacturing,
falls to the same level accounted for 68 percent of all falls resulting
in lost-workday injuries, while falls to a lower level accounted for
only 27 percent. The majority of accidents in the fall-to-same-level
category are characterized as a fall to a floor, walkway, or other
surface.

 Table V-8--Estimated Annual Number of Lost-Workday Falls in Workplaces
                    Affected by the Proposed Standard
------------------------------------------------------------------------
                                                  Distribution of falls
                 Falls by type                      resulting in lost
                                                         workdays
------------------------------------------------------------------------
All Falls......................................                  215,807
    Fall to lower level........................                   55,706
        Fall down stairs or steps..............                   16,916
        Fall from floor, dock, or ground level.                    3,878
        Fall from ladder.......................                   12,472
        Fall from piled or stacked material....                      283
        Fall from roof.........................                      959
        Fall from scaffold, staging............                      434
        Fall from building girders or other                          131
         structural steel......................
        Fall from nonmoving vehicle............                   11,018
Fall to lower level, n.e.c. (a)................                    8,433
Fall to lower level, unspecified...............                    1,192
Fall on same level.............................                  152,788
    Fall from ship, boat, n.e.c................                       30
    Other falls................................                    7,281
                                                ------------------------
            Total..............................                  215,807
------------------------------------------------------------------------
(a) n.e.c.--Not Elsewhere Classified
Source: U.S. Dept. of Labor, OSHA, Directorate of Evaluation and
  Analysis, Office of Regulatory Analysis, 2009, based on Bureau of
  Labor Statistics, Survey of Occupational Injuries and Illnesses, 2007.

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BILLING CODE 4510-29-C

    Among falls addressed by the proposed standards, the annual number
of falls to a lower level resulting in a lost-workday injury ranges
from 4.3 per 10,000 employees for the financial activities sector to
10.3 per 10,000 employees for the trade, transportation, and utility
sector. Among specific types of falls to a lower level, falls from
ladders represent 6.7 percent of all falls in manufacturing as
reflected in an injury rate of 1.3 cases per 10,000 employees. Among
other sectors, the injury rate from falls from ladders ranges from 0.4
per 10,000 employees in the education and health services sector to 2.5
per 10,000 employees in the trade, transportation, and utility sector.
    In several sectors, falls down stairs or steps represent a major
share of injuries from falls to a lower level. The proposed
requirements for guardrails, handrails, and training would protect
employees from these types of falls. Falls from floor holes, loading
docks, roofs, and scaffolding are directly addressed by the proposed
standard, but constitute much smaller shares of nonfatal fall
accidents.
Fatalities and Injuries Prevented by the Proposed Subpart D and I
Standards
Fatalities Prevented
    OSHA's proposed standards for subparts D and I contain safety
requirements designed to prevent, among other incidents, falls from
ladders, scaffolds, unguarded floor holes, and unprotected platform
edges. These types of falls are classified as ``falls to lower level.''
``Falls on the same level'' include slips and trips from floor
obstructions or wet or slippery working surfaces. The proposal has
relatively few new provisions addressing falls on the same level.
    Combining the data in Tables V-6 and V-7 with other fatality data
from BLS, Table V-11 shows the estimated number of annual fatalities
from falls in general industry. Based on 2006 and 2007 data, OSHA
calculated an average of 276 fatal falls per year. ERG allocated this
total among the different fall categories based on overall fatal fall
accident experience from 1992 to 2002 as derived from the BLS Census of
Fatal Occupational Injuries and summarized in Table V-7. On this basis,
an estimated 196 fatalities per year result from falls to lower level,
while the remaining 80 fatalities result from falls on the same level
or other types of falls.
    In examining the costs of this proposal, ERG found, after reviewing
inspection results, that employers are generally in compliance with
existing standards that have been in place for over 30 years (see Table
V-15). However, this general compliance does not necessarily mean that
existing fall fatalities are not preventable by the existing standard.
For example, it could be the case that employers comply with a standard
99.9 percent of the time, but that all fatalities are the result of the
0.1 percent of the time employers are not in compliance. Thus, it is
possible for there to be a high level of compliance with a standard,
but for all fatalities, nevertheless, to be the result of non-
compliance with that standard.

                 Table V-11--Fatalities Potentially Prevented As a Result of Compliance With the Proposed Standard for Subparts D and I
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
              Falls by type                 Distribution of    Estimated annual   Incremental preventability of the proposed standard  Annual fatalities
                                             fatal falls by    number of fatal                                                            potentially
                                                  type          falls by type                                                           prevented by the
                                                                                proposed standard
                                                                                (a)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fall to lower level......................        100.0%              196
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Fall down stairs or steps............               4.2%                  8  Low..............................               5.0%                0.4
    Fall from floor, dock, or ground                    5.1%                 10  High.............................              10.0%                1.0
     level.
    Fall from ladder.....................              18.6%                 36  High.............................              15.0%                5.5
    Fall from piled or stacked material..               0.1%                  0  High.............................              10.0%                  0
    Fall from roof.......................               8.9%                 17  High.............................              15.0%                2.6
    Fall from scaffold, staging..........               8.6%                 17  Very High........................              40.0%                6.7
    Fall from building girders or other                 0.8%                  2  High.............................              10.0%                0.2
     structural steel.
    Fall from nonmoving vehicle..........              15.8%                 31  No...............................               0.0%                  0
    Fall to lower level, n.e.c...........              23.1%                 45  Uncertain........................               2.5%                1.1
    Fall to lower level, unspecified.....              14.6%                 29  Uncertain........................               2.5%                0.7
Fall from ship, boat, n.e.c..............  .................          27         Low..............................               5.0%                1.4
    Other falls..........................  .................          8          Very Low.........................               0.0%                  0
                                          --------------------------------------------------------------------------------------------------------------
        Totals...........................  .................            230 196  .................................  .................               20.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Due to rounding, figures may not sum to totals shown.
(a) Prevented fatalities were calculated as the product of annual fatal falls and incremental preventability rate, by type.
Source: U.S. Dept. of Labor, OSHA, Office of Regulatory Analysis, 2009, based on ERG, 2007; OSHA IMIS, 1995-2001; and Bureau of Labor Statistics, Census
  of Fatal Occupational Injuries, 1992-2007.

    For the purposes of this analysis, OSHA did not attempt a
quantitative analysis of how many fatal falls could be prevented by
full and complete compliance with the existing standard. However, a
qualitative examination of the fatal falls to a lower level shows that
a majority, and perhaps a large majority, could be prevented by full
compliance with the existing regulations. For this analysis, OSHA and
ERG have taken the approach that, for current levels of enforcement,
existing fall fatality rates can be used as a baseline from which to
measure the impacts of the proposal in reducing falls. This is because
the existing fall fatality rate reasonably represents what is
preventable with the existing rules and the existing degree of
enforcement and compliance with these rules.
    A comparison of the proposed and existing standards shows that the
new provisions largely concern training and inspections, rather than
requirements for additional or more stringent engineering or work
practice controls (see section F below in this PEA). In addition, the
new standard serves to

simplify and clarify the existing standard and bring the existing
standard into conformance with various voluntary standards. The
benefits in terms of reductions in fatal falls can be expected to come
in the form of the effects of increased training, inspections, and
certifications in preventing falls, many of which are preventable by
existing regulations which are not being fully followed. OSHA believes
that the proposed requirements for training, inspections, and
certifications can serve to improve safety and also compliance with
existing requirements.
    OSHA based its analysis of accident preventability on ERG's
professional judgment and two published studies. The studies show that
well-designed training programs are an effective means of improving
workplace safety. A NIOSH review of the literature concerning the
benefits of training reported that the studies were nearly unanimous in
showing that improved and expanded training increases hazard awareness
and promotes the adoption of safe work practices. However, the
quantitative relationship between increased training and reduced
accident rates remains uncertain (Cohen and Colligan, 1988, Ex. 7);
analysis of past OSHA experience shows that requiring training programs
does not lead to preventing the majority of accidents addressed by the
training (Seong and Mendeloff, 2004, Ex. 8). For this reason, ERG
concluded that the incremental benefits from the proposed standards
would be modest (ERG, 2007, Ex. 6).
    ERG estimated the number of fatal falls that would be prevented
through compliance with the proposed standards, categorized by type of
fall. Since proposed subpart D focuses heavily on ladder safety, ERG
estimated the highest preventability impact--15 percent--for falls from
ladders. For other types of falls directly addressed in the proposal
(e.g., falls from floor or dock), ERG estimated a moderately high
preventability impact of 10 percent. For types of falls less directly
or comprehensively addressed in the proposal (e.g., falls down stairs
or steps), ERG estimated a relatively low preventability impact (5
percent). Several classes of falls are not specifically defined by the
BLS injury survey, and for these, ERG estimated a low level of
preventability (2.5 percent). (See ERG, 2007, Ex. 6, p. 4-10 to 4-14.)
    For falls from roofs, ERG assigned a preventability rate of 10
percent. OSHA believes that compliance with the provisions in proposed
subpart D addressing safety systems, work practices, and training
associated with the fall hazards encountered on roof surfaces--
including the requirements referenced in consensus standards such as
ANSI/ASSE A1264.1-2007, Safety Requirements for Workplace Walking/
Working Surfaces and Their Access; Workplace, Floor, Wall and Roof
Openings; Stairs and Guardrail Systems--will yield a preventability
rate comparable to that estimated for ladders: 15 percent. Therefore,
in this preliminary analysis of benefits, OSHA has applied a
preventability rate of 15 percent to roof accidents.
    For falls from scaffolds or staging, ERG assigned a preventability
rate of 10 percent. In light of the substantial strengthening of the
fall protection requirements for rope descent systems (RDS), specified
in proposed paragraph 1910.27(b), OSHA believes that a preventability
rate much higher than 10 percent can be applied to scaffold accidents.
Because, according to OSHA and BLS accident data, approximately 40
percent of lost-workday scaffold accidents involve rope descent
systems, and due to the proposed standard's comprehensive approach to
RDS fall protection, OSHA estimates that at least 40 percent of deaths
and injuries associated with scaffolds (including non-RDS scaffolds)
will be prevented by the proposed standard. OSHA's rationale for
assigning this preventability rate to scaffolds is discussed
immediately below. All of the fall preventability factors are presented
in Table V-11.
    As shown in Table V-11, falls from scaffolds or staging are one of
the leading types of fall categories in general industry. According to
the Bureau of Labor Statistics, falls from scaffolds or staging caused
an annual average of 18 deaths and 1,474 lost-workday injuries over a
recent eleven-year period (1992-2002). OSHA reviewed a subset of
scaffold accidents recorded in the Agency's Integrated Management
Information System (IMIS) inspection database to expand ERG's analysis
of the extent to which the proposed standard would prevent accidents
involving commercial window washing, and to gain more general insights
into the preventability of fatal falls (OSHA, 2009).
    OSHA reviewed 36 incidents (some involving multiple casualties)
that occurred during the period January 1995 to October 2001 (5 years
and 10 months), where workers in general industry were either injured
or killed from a fall from an elevated scaffold or a similar surface
during commercial window washing operations. OSHA's analysis is
presented in Table V-12. In reviewing each incident description, OSHA
evaluated the probability that the incident would have been prevented
by one of the following:
    1. The existing standard for walking-working surfaces;
    2. ANSI/IWCA I-14.1, Window Cleaning Safety Standard, an earlier
version of which is referenced in a 1991 OSHA memorandum to regional
administrators on the use of descent control devices (rope descent
systems) by employees performing building exterior cleaning,
inspection, and maintenance (OSHA, 1991a); or
    3. The proposed standard.
    Table V-12, below, summarizes OSHA's analysis of IMIS window
cleaning accidents. Of the 36 window washing incidents in the database,
21 incidents were caused by a malfunction in, or unsafe use of, rope
descent systems (including lifelines). Because the existing standard
for walking-working surfaces lacks provisions that directly address
rope descent systems (RDS), OSHA believes that none of the RDS
incidents would have been prevented by full compliance with the current
rule.

             Table V-12--Fall Incidents Associated With the Use of Scaffolds During Window Cleaning
                                             [OSHA IMIS, 1995-2001]
----------------------------------------------------------------------------------------------------------------
                                                                       Incidents potentially preventable by:
                                                                 -----------------------------------------------
                        Cause of incident                            Existing                        Proposed
                                                                     standard     OSHA 1991 memo     standard
----------------------------------------------------------------------------------------------------------------
Malfunction/Mishandling of Rope Descent System or Lifelines.....             N/A              19              21
Anchorage Failure...............................................             N/A               7               8
Inadequate Training.............................................             N/A              12              14

Other Factors (suspension scaffold hardware, manlift, powered                  4             N/A               6
 platform, roof top equipment, safety belt).....................
----------------------------------------------------------------------------------------------------------------
*N = 36. Some incidents are assigned to more than one category.
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, and Office of Regulatory Analysis,
  2009.

    Of the 21 RDS incidents in the database, in OSHA's judgment, 19 of
them would have been prevented if the employer had adhered to the
safety recommendations specified in OSHA's 1991 window cleaning
memorandum, which in turn refers to an existing consensus standard. The
remaining two RDS incidents, in OSHA's estimation, would not be
prevented by the current OSHA standard and the existing consensus
standards, but would be prevented by the proposed standard (in addition
to the other 19 RDS incidents prevented by the proposed standard).
    One of the primary causes of accidents in commercial window washing
is the failure of the rooftop anchorage to support the suspended
scaffold. The proposed standard requires that employers use proper
rigging, including sound anchorages and tiebacks, when rope descent
systems are used. OSHA identified eight incidents in the IMIS database
where anchorage failure contributed to the accident. In OSHA's
judgment, all eight anchorage-related incidents involved factors that
are addressed by the proposed standard and therefore are potentially
preventable. All but one of these eight incidents involved factors
addressed by the 1991 memo.
    As noted earlier in this section, when workers are adequately
trained--for example in the proper use of harnesses and lifelines--
accidents are less likely to occur. OSHA identified fourteen incidents
in the IMIS database where, if workers had applied the lessons provided
in the kind of training prescribed in the proposed standard, death or
injury to the worker might have been prevented. Of these fourteen
cases, twelve involved factors that are addressed by the 1991 memo.
    Other factors that led to a fall from elevation, such as equipment
failure involving suspension scaffolds and powered platforms,
contributed to the death or injury of workers during window washing
operations. These incidents are recognized in the fourth row of Table
V-12.
    OSHA believes that this analysis illustrates some of the
complexities in assigning benefits to this standard. Chief among these
complexities is the argument that full compliance with the proposed
standard will prevent fatalities not preventable by the existing
standard due to the proposed addition of major provisions addressing
window washing.
    Secondly, there is the question of the proper baseline for such an
analysis. OSHA may not have any rule addressing RDS systems or
anchorages for these and other suspended scaffolds, but there are
consensus standards and OSHA enforcement policies that apply OSHA's
general duty clause when existing standards may not apply. The changes
from a baseline of current enforcement practice are much more marginal
than if no standards or enforcement initiatives existed for a
particular hazard. Nevertheless, a simple comparative prevention table
of this kind may not capture the difference between occasional
enforcement using the general duty clause and consensus standards, and
enforcement of an actual standard. Adopting the additional protections
afforded by consensus standards and materials referenced in general
duty citations into a standard make the information more available,
assures that everyone affected can readily consult the relevant rules,
and simplifies enforcement. These are desirable ends even if no
additional fatalities are prevented, and probably would serve to
prevent some current fatalities and injuries.
    Thirdly, there is the issue, already discussed above, of how to
treat the benefits of training requirements. OSHA normally assumes for
the purposes of both benefit and cost analysis, that there is full
compliance with a rule. For some kinds of rules, it can readily be
determined if full compliance with the rule would have prevented an
accident. However, for training rules, it is not at all obvious that
full compliance--assuming training is given--will prevent accidents
that the training is designed to address (Seong and Mendeloff, 2004).
OSHA has made a relatively low estimate of the effects of such training
requirements in Table V-11. The approach used in Table V-12 suggests
that a much higher estimate might be made if employees are assumed to
act as they have been trained to act.
    Finally, the proposed standard inevitably builds, for the most
part, on an existing framework. The existing framework, if fully
followed, would prevent many accidents. While the new regulation adds
new kinds of provisions, it also tries to improve compliance with the
existing regulation in a variety of ways. Ways in which it may improve
compliance include additional training; additional certification;
bringing into the regulatory framework materials and ideas from
consensus standards; and codifying existing enforcement practice. Steps
of this kind have a variety of desirable, though difficult-to-quantify
effects.
    Based on ERG's estimates, and applying the preventability rate for
scaffolds as explained above, OSHA concluded that the proposed
standards would prevent 20 fall fatalities a year, or approximately 9
percent of the fatal falls in general industry that would be addressed
by the proposed standard. OSHA believes that this is a conservative
estimate, in that the training and work practices specified in this
proposal would likely improve the use and application of safety
equipment (including personal fall protection equipment), thereby
further reducing fatalities and injuries.
    OSHA requests comment on the Agency's analysis of scaffold
accidents described above and on the various approaches to measuring
potential benefits achievable from compliance with the proposed
standard in addition to those described in Tables V-11, V-12 (above),
and V-13 (below).
Injuries Prevented
    For the purposes of estimating the number of lost workday injuries
that might be prevented by the proposed standards, OSHA used the same
preventability factors for the proposal as

for fatal falls, and applied them to lost workday injuries involving
falls. Table V-13 shows, by type of fall, the distribution of lost-
workday injuries for general industry; these injury categories were
presented earlier in this section in Table V-8. The BLS data show that,
for non-fatal falls to a lower level, 30.4 percent of injuries are due
to falls down stairs or steps, while 22.4 percent are the result of
falls from ladders. Applying these and other fall injury rates (see
Table V-10) to the estimates of total employment within affected
sectors in general industry (see Table V-1), OSHA estimates that, on
average, 63,028 lost-workday fall injuries occur each year for work
operations directly affected by the proposed revisions to subparts D
and I. Using the same preventability estimates that were applied to
fatal incidents, OSHA estimates that 3,706 lost-workday fall injuries
would be prevented annually through compliance with the proposed
revisions to subparts D and I.

       Table V-13--Nonfatal Lost-Workday Injuries Potentially Prevented As a Result of Compliance with the Proposed Standard for Subparts D and I
--------------------------------------------------------------------------------------------------------------------------------------------------------

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               Falls by type                  Distribution of  Estimated annual   Incremental preventability of the    Annual nonfatal
                                              falls resulting      number of               proposed standard              injuries
                                                  in lost       nonfatal falls,                                          potentially
                                               workdays, by         by type                                           prevented by the
                                                   type                                                                   proposed
                                                                                standard (a)