percent of the total value of the income loss to the employee (IRS,
2013; Urban Institute/Brookings, 2012).\97\ Tax losses are likely to be
significant because (1) workers' compensation payments are not subject
to Federal income or Social Security taxes (IRS, 2012), and (2) many
studies have found that income losses not compensated by workers'
compensation are significant (NASI, 2012). (There are some other
possible incentive effects with respect to tax policy that might either
encourage or discourage safety, but they represent a small percentage
of the total value of a statistical life or injury by comparison.)
---------------------------------------------------------------------------

    \97\ The average federal tax rate for 2009 for the middle
quintile of household income was 11.1 percent (Urban Institute/
Brookings, 2012).
---------------------------------------------------------------------------

    In the second case, as discussed below, the costs employers pay in
compensation for damages or wage premiums are not fully responsive to
changes in employer-specific workplace risk.
    Most employers cover--and are required to cover--compensation for
injured employees through workers' compensation insurance. (Some very
large employers may self-insure in some states.) States highly regulate
premiums for workers' compensation insurance and generally employ a
combination of a class rating and an experience rating in deriving
premiums (NCCI, 2013; Ashford, 2006). The class rating is based on the
average risk for employees in the same occupations as those working for
the employer. The basis of the experience rating is the employer's
actual workers' compensation claims over the past several years. Very
small firms are almost entirely class-rated; even medium-sized firms
are partly class-rated; and it will take even firms that are fully
experience-rated several years before their insurance premium levels
fully reflect any change in their workplace safety performance.\98\ As
a result, most employers will not realize fully or promptly the gains
from their expenditures to avoid workplace injury, illness, and
fatality risks in the form of reduced workers' compensation premiums.
The result is an insufficient level of worker protection from a
societal perspective.
---------------------------------------------------------------------------

    \98\ This outcome, of course, reflects an accounting point.
Premiums due to class rating, by definition, do not change with an
individual employer's injury experience. There is some empirical
evidence, using a difference in differences methodology, that
(small) firms that move from class to experience rating decrease
their total claims by 8 to 12 percent (Neuhauser et al., 2013).
---------------------------------------------------------------------------

    Furthermore, workers' compensation covers only a small fraction of
most estimates of the willingness to pay to prevent a fatality.\99\
Additionally, workers' compensation payments do not fully compensate
injuries in that workers' compensation provides no payments for pain
and suffering or losses other than lost wages or medical expenses
associated with injuries. There is extensive evidence that workers'
compensation does not even fully restore wages lost as a result of
long-term disability (Ashford, 2006).
---------------------------------------------------------------------------

    \99\ While workers' compensation varies by state, Leigh and
Marcin (2012) estimate that the average indemnity benefits for a
fatality are $225,919, far less than willingness-to-pay estimates.
For example, as explained in Section D of this FEA, OSHA uses a
willingness-to-pay measure of $8.4 million per life saved in 2010
dollars. Other agencies use different estimates, but all the values
are in the millions of dollars.
---------------------------------------------------------------------------

    Having to pay wage premiums for risk is another economic incentive
for employers to mitigate occupational risk. However, wage premiums do
not respond to changes in risk level very strongly, due to information
asymmetries. For an employer to have an adequate incentive to implement
measures that will prevent workplace accidents, it is not sufficient
that employees simply know that their work is dangerous, or even know
quantitatively that their occupation has a given risk. Employees must
know the exact nature and likely quantitative effects of their
employer's safety measures and systems; have a reasonable expectation
that their employer will continue to provide existing safety measures
in the future; and be able to act on their knowledge of risk by readily
changing workplaces or changing wage demands in response to differences
in levels of risk.\100\ OSHA believes that even skilled workers exposed
to the risks of slips, trips, and falls (including some persons injured
in accidents preventable by the final rule who fall in that category)
lack such detailed employer-specific knowledge or the ability to act on
it. Further, employees who typically work at a variety of different
sites, including sites controlled by multiple employers, will find it
particularly challenging to determine future risk levels, as these
levels will vary from site to site.
---------------------------------------------------------------------------

    \100\ Furthermore, bargaining power differences or external
constraints must not interfere in the wage setting process--as they
do in circumstances of monopsony or multiemployer collective
bargaining agreements, for example. Bargaining power differences may
occur, for example, in small communities where a single manufacturer
may be the employer for certain kinds of skills, or the more general
issue that an employee's firm specific skills (such as understanding
of unique processes or equipment) are in demand by only a single
employer.
---------------------------------------------------------------------------

    In summary, OSHA believes that: (1) The provisions of the final
rule are necessary to assure that employees have the information,
procedures, and equipment they need to protect themselves; (2) neither
employers nor

employees absorb the full costs of occupational injuries and
fatalities; and (3) wage premiums and workers' compensation insurance
are not sufficiently responsive to changes in risk to assure that
employers will reduce risk to the socially optimal level. The rule is,
therefore, necessary to address market failures that result from
externalities and information asymmetries that lead to the provision of
insufficient levels of worker safety.

C. Profile of Affected Industries, Firms, Workers, and Other Factors of
Production

1. Introduction
    This section presents OSHA's profile of the firms, establishments,
and employees within the industries affected by OSHA's revision to 29
CFR part 1910, subparts D and I. The Agency based this profile on data
assembled and organized by its contractor, Eastern Research Group (ERG,
2007), and updated using more recent data from the same data series
used previously.
2. 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 revisions
to OSHA's walking-working surfaces standards would impose requirements
on employers in general industry under OSHA's jurisdiction.\101\ The
general industry category excludes establishments in the agriculture,
construction, maritime (longshoring, marine terminal, and shipyards),
and mining industries (except for oil and gas extraction). Also
excluded from the final standard are employee tasks on surfaces that
fall outside of OSHA's jurisdiction due to location or operational
status, or those tasks that are subject to unique industry-specific
fall protection requirements addressed elsewhere in part 1910,
including Sec.  1910.268, Telecommunications, and Sec.  1910.269,
Electric power generation, transmission, and distribution. An example
of a jurisdictional category excluded from the scope of the final rule
based on location or operational status is employee exposure to fall
hazards when railroad rolling stock is traveling on rails or trucks are
traveling on highways; the Department of Transportation regulates these
operations.
---------------------------------------------------------------------------

    \101\ For example, subpart F--Powered Platforms, Manlifts, and
Vehicle-Mounted Work Platforms, would be affected by the revisions
to subparts D and I. For a compilation of all standards affected by
these revisions, see the Final Regulatory Text at the end of this
document.
---------------------------------------------------------------------------

    The walking-working surfaces covered by the final 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 establishments and employees potentially
affected by revisions to subpart D, with the data listed in order by
the North American Industry Classification System (NAICS) 4-digit
industry code (OMB, 2007). Relying on the U.S. Census' Statistics of
U.S. Businesses for 2007, OSHA estimates that the final standard will
affect 6.9 million establishments employing 112 million employees; the
comparable figures in the PEA were 6.7 million establishments and 112
million employees, based on 2006 data. Table V-1 also provides economic
profile statistics for the industries covered by the final standard.
    For purposes of estimating training requirements with respect to
ladders, OSHA estimated that these provisions would apply to the 5.2
million employees engaged in construction, installation, maintenance,
repair, and moving operations in general industry. These employees
represent the main group of workers affected by the final standards;
however, the final standards may affect employees doing other types of
operations and some general industry employees engaged in installation,
maintenance, and repair operations will not be affected. Therefore, to
estimate the population affected, OSHA identified general industry
employees in occupational codes involving construction, installation,
maintenance and repair. There certainly are ladder users in other
occupations, but the occupations OSHA has included also include many
persons whose work typically would not involve the use of ladders
(e.g., computer repair, electronics repair, or construction work such a
plumbing or carpet repair). As a result, while the OSHA list of
occupations examined for purposes of costing ladder training may not
include all possible persons receiving such training, it is balanced by
the inclusion of some occupations that will not need training. This
approach assumes that employees in construction occupations, but
employed by general industry employers rather than construction
employers, routinely engage in what OSHA labels as maintenance (i.e., a
general industry activity) rather than construction activities.
    In the PEA, OSHA used Census \102\ data on payroll and receipts to
estimate average revenue per establishment in 2006 for each 4-digit
NAICS industry. For this FEA, revenue data for 2007 were available from
Census's Statistics of U.S. Businesses; Table V-1 reports these revenue
data as average receipts per establishment by 4-digit NAICS industry in
Table V-1.\103\
---------------------------------------------------------------------------

    \102\ ``Census'' refers to the U.S. Census Bureau.
    \103\ At the time the Agency was developing this FEA, the most
recent year for detailed industry-specific revenue was 2007
Statistics of US Businesses. In the years since that date the US
economy has experienced a recession and a recovery. Because new
hires were greater in 2007, this had the effect of increasing costs.
---------------------------------------------------------------------------

BILLING CODE 4510-29-P

[GRAPHIC] [TIFF OMITTED] TR18NO16.102

[GRAPHIC] [TIFF OMITTED] TR18NO16.103

[GRAPHIC] [TIFF OMITTED] TR18NO16.104

[GRAPHIC] [TIFF OMITTED] TR18NO16.105

[GRAPHIC] [TIFF OMITTED] TR18NO16.106

[GRAPHIC] [TIFF OMITTED] TR18NO16.107

[GRAPHIC] [TIFF OMITTED] TR18NO16.108

[GRAPHIC] [TIFF OMITTED] TR18NO16.109

[GRAPHIC] [TIFF OMITTED] TR18NO16.110

[GRAPHIC] [TIFF OMITTED] TR18NO16.111

[GRAPHIC] [TIFF OMITTED] TR18NO16.112

[GRAPHIC] [TIFF OMITTED] TR18NO16.113

[GRAPHIC] [TIFF OMITTED] TR18NO16.114

[GRAPHIC] [TIFF OMITTED] TR18NO16.115

[GRAPHIC] [TIFF OMITTED] TR18NO16.116

[GRAPHIC] [TIFF OMITTED] TR18NO16.117

[GRAPHIC] [TIFF OMITTED] TR18NO16.118

[GRAPHIC] [TIFF OMITTED] TR18NO16.119

[GRAPHIC] [TIFF OMITTED] TR18NO16.120

[GRAPHIC] [TIFF OMITTED] TR18NO16.121

[GRAPHIC] [TIFF OMITTED] TR18NO16.122

[GRAPHIC] [TIFF OMITTED] TR18NO16.123

[GRAPHIC] [TIFF OMITTED] TR18NO16.124

[GRAPHIC] [TIFF OMITTED] TR18NO16.125

BILLING CODE 4510-29-P
    The parts of the final 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 the Bureau of Labor
Statistics' (BLS) Occupational Employment Statistics (OES) survey
documenting employment by detailed occupation using 4-digit NAICS
industry codes. 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, as well as the overall number of production employees.\104\
As shown in Table V-1, an estimated 27.8 million employees are in
production occupations, while an estimated 5.2 million are in
construction, installation, and maintenance and repair occupations.
---------------------------------------------------------------------------

    \104\ Production workers include those in building and grounds;
construction; installation, maintenance, and repair; production; and
material moving occupations. It is possible that employees in
construction and related occupations, even though not employed by
establishments in construction industries, might perform work
regulated by OSHA under its construction standards in 29 CFR part
1926. Therefore, the employers of these workers, depending on the
type of work performed, also may have to meet the requirements for
fall protection and walking-working surfaces specified in the
construction standards. To the extent that these workers may be
subject to both the general industry fall protection standard and
the construction fall protection standard, the final rule increases
harmonization with the construction fall protection standards,
rather than generating new costs or worker-safety benefits.
---------------------------------------------------------------------------

3. Profile of Potentially Affected Small Entities
    To assemble the data necessary for a screening analysis to
determine potential impacts on small entities as prescribed by the
Regulatory Flexibility Act, OSHA developed profiles of small entities
in the industries covered by the final OSHA standards for subparts D
and I. OSHA 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. When the SBA specified the
small business criterion as a revenue threshold, OSHA used the Census
data to associate that revenue with a given employment size. The first
column of Table V-2 provides OSHA's estimates of SBA-based employment-
size criteria. This table shows, for each NAICS industry code, the
number of entities and employees, and average receipts per entity, for
business units that meet the employment-size criterion. OSHA estimated
the numbers of at-risk employees by applying the percentage of at-risk
small-entity employees estimated in the PEA to total estimated small-
entity employment, after deriving the latter estimate from updated
(2007) Census data on the number of affected small entities.
    OSHA also used the Census data to develop a profile of entities
that employ fewer than 20 employees. Table V-3 provides these
estimates.

BILLING CODE 4510-19-P

[GRAPHIC] [TIFF OMITTED] TR18NO16.126

[GRAPHIC] [TIFF OMITTED] TR18NO16.127

[GRAPHIC] [TIFF OMITTED] TR18NO16.128

[GRAPHIC] [TIFF OMITTED] TR18NO16.129

[GRAPHIC] [TIFF OMITTED] TR18NO16.130

[GRAPHIC] [TIFF OMITTED] TR18NO16.131

[GRAPHIC] [TIFF OMITTED] TR18NO16.132

[GRAPHIC] [TIFF OMITTED] TR18NO16.133

[GRAPHIC] [TIFF OMITTED] TR18NO16.134

[GRAPHIC] [TIFF OMITTED] TR18NO16.135

[GRAPHIC] [TIFF OMITTED] TR18NO16.136

[GRAPHIC] [TIFF OMITTED] TR18NO16.137

[GRAPHIC] [TIFF OMITTED] TR18NO16.138

[GRAPHIC] [TIFF OMITTED] TR18NO16.139

[GRAPHIC] [TIFF OMITTED] TR18NO16.140

[GRAPHIC] [TIFF OMITTED] TR18NO16.141

[GRAPHIC] [TIFF OMITTED] TR18NO16.142

[GRAPHIC] [TIFF OMITTED] TR18NO16.143

[GRAPHIC] [TIFF OMITTED] TR18NO16.144

[GRAPHIC] [TIFF OMITTED] TR18NO16.145

[GRAPHIC] [TIFF OMITTED] TR18NO16.146

[GRAPHIC] [TIFF OMITTED] TR18NO16.147

[GRAPHIC] [TIFF OMITTED] TR18NO16.148

[GRAPHIC] [TIFF OMITTED] TR18NO16.149

[GRAPHIC] [TIFF OMITTED] TR18NO16.150

[GRAPHIC] [TIFF OMITTED] TR18NO16.151

[GRAPHIC] [TIFF OMITTED] TR18NO16.152

[GRAPHIC] [TIFF OMITTED] TR18NO16.153

[GRAPHIC] [TIFF OMITTED] TR18NO16.154

[GRAPHIC] [TIFF OMITTED] TR18NO16.155

[GRAPHIC] [TIFF OMITTED] TR18NO16.156

[GRAPHIC] [TIFF OMITTED] TR18NO16.157

[GRAPHIC] [TIFF OMITTED] TR18NO16.158

[GRAPHIC] [TIFF OMITTED] TR18NO16.159

[GRAPHIC] [TIFF OMITTED] TR18NO16.160

4. Number of Employees Using Fall Protection
    Based on analysis by ERG (2007), OSHA estimated the numbers of
employees using fall protection equipment by extrapolating results
obtained from OSHA's 1999 PPE Cost Survey.\105\ This establishment-
based survey provided industry-specific estimates of the numbers of
workers who used various types of personal fall protection equipment,
including body harnesses and body belts. The survey reported the
percentage of employees in each industry (by SIC codes) who used these
types of personal fall protection equipment. ERG applied the survey
findings by first associating the SIC industries covered by the survey
with the 4-digit NAICS industry codes, and then multiplying total
employment (presented above in Table V-1) by the percentage of
employees who used personal fall protection equipment.
---------------------------------------------------------------------------

    \105\ For a description of the survey, see ERG (1999) in the
reference section of this FEA. ERG excluded back-support belts and
similar ergonomic devices from the types of personal protective
equipment investigated by the survey.
---------------------------------------------------------------------------

    Because different employees might use both body harnesses and body
belts, OSHA used the combined value of the two percentages in deriving
these estimates. For example, if six percent of employees in a given
industry used body harnesses while four percent of employees used body
belts, OSHA applied the combined percentage (ten percent) as its
estimate of the maximum number of employees using either form of fall
protection.\106\ The survey's design did not permit industry-specific
estimates for all industries.
---------------------------------------------------------------------------

    \106\ For the PEA, OSHA applied the upper value in the range--
six percent in the example given--and not the combined percentage.
---------------------------------------------------------------------------

    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
personal fall protection equipment 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 the 4-digit NAICS industry code, OSHA's estimate of the
number of employees using fall protection equipment.\107\ Overall, OSHA
estimated that approximately 2.1 million employees in general industry
currently use and will continue to use fall protection.
---------------------------------------------------------------------------

    \107\ The source of the data in Table V-4 is the OSHA PPE Cost
Survey. Estimates shown are based on the combined percentage of
employees using body harnesses and body belts. See Eastern Research
Group, 1999. An ``NA'' indicates that the industry was not within
the scope of the survey or that the subset of production employees
judged to be subject to this standard was zero (NA) (see Table V-1).
In ERG, 1999 (OSHA PPE Survey), see Table A2, PPE Category: Fall
Protection; PPE Type: Body Harness; PPE Type: Body Belt, where, by
two-, three-, and four-digit SIC codes, the number and percentage of
employees using the PPE type is reported. For this FEA, ERG
converted SIC codes to NAICS codes; see Ex. [OSHA Excel Workbook],
tab Fall_protection.
---------------------------------------------------------------------------

5. Wage Rates
    As discussed in detail later in this FEA, OSHA believes that much
of the cost impact of the final standard results from the time
requirements for additional training and inspections. The Agency based
the estimates for these costs on the opportunity cost of the labor time
devoted to training, inspections, and installation or deployment of
fall protection equipment. OSHA valued these opportunity costs in terms
of employees' hourly wages, including benefit and fringe costs. Relying
on average hourly earnings as reported by the BLS Occupational
Employment Statistics Survey, 2010, OSHA constructed a weighted average
hourly wage for the specific occupations comprising production
employment for each industry. Similarly, OSHA constructed an average
hourly production-supervisor wage for each industry.\108\ The Agency
then multiplied these wages by a mark-up factor to account for fringe
benefits. According to the 2010 BLS Employer Costs for Employee
Compensation \109\ survey (BLS, 2011), this mark-up factor averages
41.5 percent across industries in 2010. The loaded wage rates applied
by OSHA in this FEA are in Table V-5.
---------------------------------------------------------------------------

    \108\ For example, for NAICS 4871--Scenic and Sightseeing
Transportation, Land, NAICS 4872--Scenic and Sightseeing
Transportation, Water, and NAICS 4879--Scenic and Sightseeing
Transportation, Other, BLS OES did not report production wage and
supervisory wage for 2010. Therefore, OSHA's applied as the base
wage for production worker ($19.80), the reported value for the next
largest available industry sector, NAICS 48-49, Transportation and
Warehousing. For the supervisory wage ($27.45) for NAICS 4871, 4872,
and 4879, OSHA applied a wage rate taken from a related
transportation industry, NAICS 4851, Urban Transit Systems. Applying
the fringe-benefit markup factor of 41.5 percent raised the
production worker wage to $28.01 and the supervisory wage to $38.83.
    \109\ BLS (2010) reported a value of 41.5 percent for all
private industry for June 2010.

---------------------------------------------------------------------------

[GRAPHIC] [TIFF OMITTED] TR18NO16.161

[GRAPHIC] [TIFF OMITTED] TR18NO16.162

[GRAPHIC] [TIFF OMITTED] TR18NO16.163

[GRAPHIC] [TIFF OMITTED] TR18NO16.164

[GRAPHIC] [TIFF OMITTED] TR18NO16.165

[GRAPHIC] [TIFF OMITTED] TR18NO16.166

[GRAPHIC] [TIFF OMITTED] TR18NO16.167

[GRAPHIC] [TIFF OMITTED] TR18NO16.168

[GRAPHIC] [TIFF OMITTED] TR18NO16.169

[GRAPHIC] [TIFF OMITTED] TR18NO16.170

[GRAPHIC] [TIFF OMITTED] TR18NO16.171

[GRAPHIC] [TIFF OMITTED] TR18NO16.172

[GRAPHIC] [TIFF OMITTED] TR18NO16.173

[GRAPHIC] [TIFF OMITTED] TR18NO16.174

[GRAPHIC] [TIFF OMITTED] TR18NO16.175

[GRAPHIC] [TIFF OMITTED] TR18NO16.176

[GRAPHIC] [TIFF OMITTED] TR18NO16.177

[GRAPHIC] [TIFF OMITTED] TR18NO16.178

[GRAPHIC] [TIFF OMITTED] TR18NO16.179

[GRAPHIC] [TIFF OMITTED] TR18NO16.180

[GRAPHIC] [TIFF OMITTED] TR18NO16.181

[GRAPHIC] [TIFF OMITTED] TR18NO16.182

6. Other Factors of Production Profiled for This FEA
    Factors of production relevant to the final cost analysis included
not only establishments, employers, and employees in general industry,
but also the following walking and working surfaces:

 Manhole Steps and Rungs
 Stepbolts on Utility and Communication Poles and Towers
 Commercial and Residential Buildings (Window Cleaning) and
 Fixed Ladders

Details on the sources, count, dimensions, and other factors are
provided in the cost discussions below in Section E.

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

1. Introduction
    This section reviews the populations in general industry that are
at risk of occupational injury or death due to hazards associated with
slips, trips, or falls to lower levels, and assesses the potential
benefits associated with the changes to subparts D and I resulting from
the final rule. OSHA believes that compliance with the final rule will
yield substantial benefits in terms of lives saved, injuries avoided,
and reduced accident-related costs. Applying updated accident data and
incorporating information from the record, OSHA revised its preliminary
estimate of (1) the baseline level of risk and (2) prevented deaths and
injuries due to the final rule.
    As described in Section C of this FEA (Industry Profile) above, the
employees affected by the final standard work largely in construction,
installation, maintenance, and repair. According to the Bureau of Labor
Statistics' 2007 Occupational Employment Statistics survey, there are
approximately 112.3 million employees in industries within the scope of
this final rule: 5.2 million employees engaged in construction,
installation, maintenance, and repair operations in general industry
that OSHA judges will need ladder training because these occupations
are the most likely to use ladders in their work; \110\ and 2.1 million
employees in general industry using personal fall protection equipment.
The rule also affects workers in a variety of specific kinds of work
who may enter manholes using step bolts, use scaffolds or rope descent
systems, etc. The inclusion of construction occupations assumes that
employees in construction occupations, but employed by general industry
rather than construction employers, routinely engage in what OSHA
labels as maintenance (i.e., a general industry activity) rather than
construction activities.
---------------------------------------------------------------------------

    \110\ Ladder use is not limited to these occupations, and there
are many persons in these occupations that do not use ladders. OSHA
examined ladder fatalities recorded by BLS from 2011 through 2014
and found that 68 percent of ladder fatalities were in the
occupations OSHA included as needing ladder training. However, of
the 5.2 million included, many such as computer and electronics
repair technicians and auto mechanics have low rates of ladder
fatalities indicating that ladders are likely rarely used in these
occupations. Over two million of those included as always needing
ladder training are thus unlikely to need ladder training. This
potential overestimate of ladder training costs is probably
countered by the number of other workers who potentially use ladders
but are excluded from the 5.2 million, such as 950,000 grounds
maintenance workers who provide over 5 percent of ladder fatalities.
The remaining 27 percent of ladder fatalities are very widely
dispersed; ladder fatalities are found in every major occupational
group.
---------------------------------------------------------------------------

    This section 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. This final
standard would produce benefits to the extent that compliance prevents
injuries and fatalities that would otherwise occur.
2. Profile of Fall Accidents
a. 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 through 2012. To provide a more detailed breakdown of the
kinds of falls

included in this total, OSHA in the PEA examined CFOI data for a longer
period: 1992 to 2002. For this FEA, OSHA has updated the detailed
breakdown using data from 2006-2010 and applies this updated breakdown
of the kinds of affected falls to the 2006-2012 fatality data.\111\
---------------------------------------------------------------------------

    \111\ Beginning in 2011, BLS revised the system for reporting
types of fatal fall events. The detailed fatality events shown below
in Tables V-11 were no longer available after 2010.
---------------------------------------------------------------------------

    Distinguished from the larger category of all falls--i.e., a set of
accidents that includes falls on the same level, falls to a lower
level, and jumps to a lower level--the narrower category of falls to a
lower level consists of the types of falls directly addressed by most
of the changes to OSHA's requirements by this final standard. As shown
in Table V-6, the CFOI reported 283 and 279 fatal falls to lower levels
for 2006 and 2007, respectively, in industries covered by the final
standard; for the five most recent years for which the data were
available, fatal falls to a lower level declined to an average of 252
fatalities. For purposes of estimating the overall rate of fall
fatalities for this benefits analysis, OSHA took the average of these
seven years--i.e., 261 fall fatalities to a lower level per year. Over
the seven-year period, the Professional, Scientific, and Technical
Services industry and the Administrative and Support Services industry
(NAICS codes 541 and 561, respectively) accounted for 27 percent of the
fatal falls, while the Manufacturing (NAICS codes 31-33) and
Transportation (NAICS code 48) industries accounted for 9.6 and 7.1
percent of the fall fatalities, respectively. Among all three-digit
NAICS codes affected by the standard, BLS reported the highest number
of fatal falls in NAICS code 561, Administrative and Support Services.
Although not shown in the table, a large majority of the fatalities for
Administrative and Support Services--86 percent for the seven-year
period 2006-2012--occurred in the industry concerned with services to
buildings and dwellings (NAICS code 5617).

[GRAPHIC] [TIFF OMITTED] TR18NO16.183

[GRAPHIC] [TIFF OMITTED] TR18NO16.184

[GRAPHIC] [TIFF OMITTED] TR18NO16.185

[GRAPHIC] [TIFF OMITTED] TR18NO16.186

[GRAPHIC] [TIFF OMITTED] TR18NO16.187

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

final standard will prevent fall fatalities to different degrees for
different types of falls. Table V-7 shows, for the 5-year period 2006
to 2010, 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 77 percent of total fall
fatalities.\112\ On a sector-by-sector basis, falls to a lower level as
a percentage of all fatal falls ranged from 50 percent for the
Educational Services (1.4 of 2.8, unrounded) and Health Care and Social
Assistance sectors (6.4 of 12.8, unrounded) to 91 percent for the
Administration and Support and Waste Management and Remediation
Services sector (64 of 74.6, unrounded). As Table V-7 also shows, fatal
falls from ladders averaged 56 per year over the 5-year period, while
fatal falls from scaffolds averaged 13 per year.
---------------------------------------------------------------------------

    \112\ The average for 2006-2010 shown in Table V-7 (333
fatalities) differs from the baseline estimate applied in OSHA's
benefits analysis (345 fatalities; see Table V-11) due to the
addition of two years (2011 and 2012) in OSHA's estimate of the
baseline average. See Ex. [OSHA Excel Workbook], tab Prevented
Fatalities '06-'12.

---------------------------------------------------------------------------

[GRAPHIC] [TIFF OMITTED] TR18NO16.188

[GRAPHIC] [TIFF OMITTED] TR18NO16.189

b. Fall Injuries
    Table V-8, based on BLS's Survey of Occupational Injuries and
Illnesses, shows the average number of lost-workday injuries due to
falls in general industry, by type of fall, for 2006-2012. The number
of falls to lower level (48,379) and the number of falls on same level
(137,079) were calculated as the average of injury data reported by BLS
for 2006-2012. OSHA allocated the average number of falls to a lower
level (48,379) among the different fall to a lower level categories
based on the average distribution of falls to a lower level for 2006-
2010.\113\ The estimate of other falls is derived as the difference
between total falls and the sum of falls to lower level and falls on
same level. As Table V-8 shows, unlike fall fatalities, falls to a
lower level represent a relatively small share of injurious, non-fatal,
falls. This table forms the basis for OSHA's estimate of the number of
lost-workday injuries prevented by the final standard.
---------------------------------------------------------------------------

    \113\ Data on injuries associated with types of fall to lower
level were reported only up until 2010.
---------------------------------------------------------------------------

    Table V-9, also based on BLS's 2010 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 for which
the data are incomplete, the combined fall injury rate ranges from a
low of 3.2 cases per 10,000 workers in NAICS 518 (Internet Service
Providers, Web Search Portals, and Data Processing Services) to a high
of 72.0 per 10,000 employees in NAICS 481 (Air Transportation). Of the
81 affected industries with reported fall injury data, 17 had fall
injury rates in excess of 30 cases per 10,000 employees, while 28 had
fall injury rates between 20 and 30 cases per 10,000 employees.
    Table V-10, also based on BLS's 2010 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 final standard. The majority of accidents in the fall-
to-same-levelcategory are falls to a floor, walkway, or other surface.

[GRAPHIC] [TIFF OMITTED] TR18NO16.190

[GRAPHIC] [TIFF OMITTED] TR18NO16.191

[GRAPHIC] [TIFF OMITTED] TR18NO16.192

[GRAPHIC] [TIFF OMITTED] TR18NO16.193

[GRAPHIC] [TIFF OMITTED] TR18NO16.194

[GRAPHIC] [TIFF OMITTED] TR18NO16.195

[GRAPHIC] [TIFF OMITTED] TR18NO16.196

[GRAPHIC] [TIFF OMITTED] TR18NO16.197

BILLING CODE 4510-29-C
    Among falls addressed by the final standard, the annual number of
falls to a lower level resulting in a lost-workday injury ranges from
4.7 per 10,000

employees for the Financial Activities sector to 8.1 per 10,000
employees for the Trade, Transportation, and Utility sector. Among
specific types of falls to a lower level, falls from ladders represent
7.5 percent of all falls in the Manufacturing sector 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 2.0 per 10,000
employees in the Trade, Transportation, and Utility sector and in the
Other Services sector.
    In several sectors, falls down stairs or steps represent a major
share of injuries from falls to a lower level. The provisions in the
final standard requiring guardrails, handrails, and training would
protect employees from these types of falls. The final rule addresses
directly falls from floor holes, loading docks, roofs, and scaffolding,
but these falls constitute much smaller shares of nonfatal fall
accidents.
3. Fatalities and Injuries Prevented by the Final Subpart D and I
Standard
a. Fatalities Prevented
    OSHA's final standard for subparts D and I contains safety
requirements designed to prevent falls involving ladders, rope descent
systems, unguarded floor holes, and unprotected platform edges, among
other conditions. In this FEA, OSHA classifies these types of falls as
``falls to [a] lower level.'' ``Falls on the same level'' include slips
and trips from floor obstructions or wet or slippery working surfaces.
The final rule has relatively few new provisions addressing falls on
the same level and therefore OSHA has assigned a preventability rate of
1 percent (i.e., the percentage of fatal incidents that the Agency
estimates will be prevented by the final rule) to these types of falls.
    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 2006-2012 data, OSHA
calculated an average of 345 fatal falls per year, 261 fatal falls to a
lower level per year, and 75 fatal falls to the same level. OSHA
allocated the average number of falls to a lower level (261) among the
different fall categories based on overall fatal fall accident
experience from 2006 to 2010 derived from the BLS Census of Fatal
Occupational Injuries summarized in table V-7.\114\ On this basis, an
estimated 261 fatalities per year resulted from falls to a lower level,
while the remaining 84 fatalities resulted from falls on the same level
or other types of falls.
---------------------------------------------------------------------------

    \114\ See ERG, 2007 (Ex. OSHA-2007-0072-0046), p. 4-10, for
further explanation of OSHA's methodology for applying historic
percentages to types of falls. See also Ex. [OSHA Excel Workbook],
tab Prevented Fatalities '06-'12 for details on the application of
the distribution of falls from 2006-2010 to the baseline average
number of fatal falls for 2006-2012 in the final benefits analysis.
---------------------------------------------------------------------------

    In examining the costs of the proposed standard, ERG found, after
reviewing inspection results, that most employers are generally in
compliance with the existing subpart D standards that have been in
place for over 30 years (see Table V-15 in the PEA). However, this
general compliance does not necessarily mean that many of the observed
fall fatalities and injuries are not the result of failure to comply
with existing standards. For example, even if employers are complying
with a standard 99.9 percent of the time, it is still possible that
many current fall fatalities could still be the result of the 0.1
percent level of employer noncompliance.
BILLING CODE 4510-29-P

[GRAPHIC] [TIFF OMITTED] TR18NO16.198

BILLING CODE 4510-29-C
    For the purposes of the analysis summarized in Table V-11, OSHA did
not perform a quantitative analysis of how many fatal falls full and
complete

compliance with the existing standard could prevent. However, a
qualitative examination of the fatal falls to a lower level shows that
full and complete compliance with the existing standard could prevent a
majority, and perhaps a large majority, of these falls. For the PEA,
and for this FEA, OSHA and its contractor used expert judgment to
estimate preventability factors associated with the new rule taking
account of considerations that most falls might be prevented by
existing rules. The preventability factors are then the percentage of
existing falls, many of which are preventable by existing rules, that
would be prevented by this new final rule. On the other hand, these
preventability factors assume, as do the cost estimates, full
compliance with the new rule. On the benefits side, the estimated
number of preventable falls is based on estimates of the number of
actual current falls that are preventable by full compliance with the
new standard. On the cost side, costs are estimated as the cost of
going from baseline compliance to full compliance with the new rule. In
order to achieve consistency between costs and benefits estimates, both
must reflect the same assumptions regarding existing compliance with
the new rule.
    OSHA also considered, and in some cases adopted, the approach of
using consensus standards as a baseline. As will be discussed in detail
in the cost chapter, in some cases OSHA assumed full compliance with
consensus standards for purposes of both benefits and costs. In such
cases, OSHA estimated neither costs nor benefits where the OSHA rule
did not go beyond consensus standards. However, where consensus
standards involve training or work practices required of even the
smallest firms who may not even be aware of consensus standards, OSHA
estimated both costs and benefits from the existing baseline. This
baseline might yield overestimates of true impacts because many follow
the consensus standard, but there is some reasonable chance that
employers are more likely to meet an OSHA requirement than a consensus
standard.
    A comparison of the existing and new standards shows that the new
provisions largely concern training and inspections, with requirements
for additional or more stringent engineering or work-practice controls
being less prominent (see Section F (Costs of Compliance) below in this
FEA). Nonetheless, OSHA's final cost analysis assigns engineering
controls and personal protective equipment to operations and activities
that were not assigned such controls in the PEA, including costs for
repairs or replacements of equipment as a result of equipment failing
inspections. In addition, the new standard simplifies and clarifies
certain provisions, and, compared to the existing standard, better
aligns them with various national consensus standards. OSHA finds that
the benefits in terms of reductions in fatal falls result from
increased training, inspections, and certifications (i.e., roof anchor
certification) in preventing falls.
    In the PEA, OSHA based its analysis of accident prevention on ERG's
professional judgment and two published studies.\115\ The studies show
that well-designed training programs are an effective means of
improving workplace safety. A review of the literature by the National
Institute for Occupational Safety and Health concerning the benefits of
training reported that the studies showed consistently that improved
and expanded training increased hazard recognition and promoted
adoption of safe work practices. However, the magnitude of the effect
of increased training on accident rates remains uncertain (Cohen and
Colligan, 1988). Further, analysis of past OSHA experience shows that
requiring training programs does not ultimately prevent the majority of
accidents addressed by the training. One study of OSHA benefits
estimates for 6 standards promulgated between 1990 and 1999 found that
OSHA had routinely estimated greater numbers of accidents potentially
prevented than had actually occurred (Seong and Mendeloff, 2004).
OSHA's accident prevention estimates ranged from 40 to 85 percent of
relevant classes of accidents. The article shows that such levels of
prevention did not in fact occur. The article goes on to discuss the
issue of why effects were overestimated and states:
---------------------------------------------------------------------------

    \115\ The term ``prevention rate'' as used in this FEA, refers
to prevention of both injuries and fatalities.

    Why has OSHA usually overestimated the effects? One point that
OSHA staff emphasized in response to these findings was that the
figures they produce should not be viewed as ``predictions;''
rather, they are estimates of what the impact would be if there were
full compliance with the standard.
    OSHA staff is well aware that there is not full compliance with
OSHA standards. However, despite its lack of realism, the assumption
of full compliance seems generally reasonable given the task that
the regulatory analysts face. OSHA is required by statute to
demonstrate that its standards are technologically and economically
feasible, and this demonstration must be made under the assumption
that there is full compliance. And if costs are estimated under this
assumption, then calculations of the benefits these costs would
generate should arguably use it as well.
    However, there is a point at which the full compliance
assumption does go beyond reasonableness. OSHA appears to assume
that if a standard requires workers to avoid working in a hazardous
manner or provides them training to change their behaviors, then all
such unsafe behavior will be eliminated. This assumption creates the
potential for estimating unrealistically large reductions in
injuries. When training and work practices are major components of a
standard, OSHA should be required to analyze their impacts in a more
deliberative and realistic fashion. (Seong and Mendeloff, 2004)

    OSHA continues to feel it is important to present full compliance
estimates, but agrees with the article that such an assumption should
not imply that the training can be expected to prevent accidents as if
all lessons provided in training are automatically applied by all
workers.
    In addition to less than full compliance, there are some
methodological limitations to the time trend approach used by Seong and
Mendeloff. First they assume that compliance begins on the effective
date of the regulation. In reality, some employers begin compliance
with new regulations before they are finalized, while others do not
start to comply until long after a regulation goes into effect. Many
employers start applying many of the provisions of a proposed standard
at the time of proposal, in part to get ahead of the curve; to the
extent their change in practices is anticipatory of OSHA setting or
revising standards, it should be attributed to the OSHA policy. Other
employers do not respond to a regulation as soon as it is promulgated.
OSHA itself frequently lets employers off with a warning rather than
citation in the first year of enforcement of a standard. Finally there
is a surprising amount of year-to-year variation in fatality data which
create a great deal of noise that makes the effects of rules difficult
to interpret. Seong and Mendeloff analyze the results of OSHA analyses
from 17 to 27 years ago. OSHA personnel are acknowledged in the
articles credits, and OSHA has continued to believe that OSHA should
take account of this article in its benefits analysis. In order to
assure that this was done, OSHA has shared this concern with its
contractors where appropriate. As a result of consideration of this
article, OSHA has made clear that reviewers of safety benefits analysis
would apply certain principles in their review. First, expert analysts
were informed on past overestimates, with the hope that experts would
gain in accuracy from feedback on their past inaccuracies and biases.
Secondly,

benefits analyses should not assume that changes in training
requirements can be expected to have large changes in incident
prevented unless there are also changes in engineering controls or
strong prohibitions on practices. Third, the higher the estimate, the
greater would be the justification required beyond stating this was the
best judgment of the experts. One possible effect of applying these
principles is that the highest preventability factor that was applied
in the PEA was lower than the lowest preventability factors in the
studies the Seong and Mendeloff (2004) article reviewed.
    A second major issue is that the failure of OSHA regulations to
achieve the anticipated benefits maybe partly due to failure of
employers to comply with the regulations. As noted by Seong and
Mendeloff, OSHA routinely assume full compliance with regulations for
legal reasons. In some cases, if compliance is lower than 100 percent,
benefits and costs will be proportionally reduced, with no effect on
whether benefits exceed costs. For example, if twenty percent of
establishments in an industry are out of compliance with a provision in
the baseline, and these twenty percent cause ten percent of all fall
fatalities, then if only ten percent come into compliance, rather than
twenty percent, accidents would still be reduced by five percent. Under
this scenario, a finding that benefits exceed costs under full
compliance would be maintained at a lower compliance level, as long as
those out of compliance are a homogeneous group.
    There is, however, the possibility that those out of compliance are
not a homogeneous group but consist of the two subgroups, one of which
has found other ways of preventing the same kind of falls, and one of
which are ``bad actors'' who make no efforts of any kind to prevent
falls. In this case, if compliance is only by those in the safer group,
the effects of noncompliance would not simply be proportional. Such a
situation might be particularly likely if there is noncompliance with
an existing rule and OSHA adds provisions designed to assure greater
compliance. For example, almost all trenching fatalities are the result
of complete failure to comply with existing shoring requirements. An
attempt to improve compliance by increasing recordkeeping, training,
and certification might have little effect on the bad actors who simply
fail to use shoring at all while imposing additional costs on those
already following existing shoring requirements. If only those in
compliance with the existing rule also follow these new provisions,
then there would be costs without benefits. OSHA has reviewed this rule
and does not believe that this is the case for the provisions of this
rule.
    Because of the importance of this issue, OSHA examines the effects
of possible overestimation of benefits and of noncompliance on both
costs and benefits in the sensitivity analysis.
    For the PEA, OSHA estimated the number of fatal falls potentially
prevented by compliance with the proposed standard, categorized by type
of fall. Since proposed subpart D focused heavily on ladder safety,
OSHA judged the highest impact--15 percent--would be in preventing
fatal falls from ladders. For other types of fatal falls directly
addressed in the proposal (e.g., falls from floor or dock), OSHA judged
a more moderate impact of 10 percent. For other types of fatal falls
(e.g., falls down stairs or steps), OSHA judged a relatively low
prevention impact (5 percent). For the several types of fatal falls not
specifically defined by the BLS injury survey (fall to lower level,
n.e.c., and fall to lower level, unspecified), OSHA judged a level of
preventability (2.5 percent). (See the PEA (Ex. 1) and ERG, 2007 (Ex.
46), pp. 4-10 to 4-14.)
    For falls from roofs, OSHA judged in the PEA 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 national
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--would
result in a prevention rate of 15 percent. Therefore, in the
preliminary analysis of benefits, OSHA applied a prevention rate of 15
percent to roof accidents.
    For this final analysis of benefits, OSHA increased the prevention
rate for roofs to 20 percent because the final standard: (1)
Significantly strengthened fall protection for chimney sweeps (see
Section F Costs of Compliance below in this FEA for a discussion of the
control measures that OSHA used for the chimney-cleaning services
industry), and (2) in greater detail, through association with an
analogous standard for construction, extended fall protection in the
form of designated areas and work rules intended to limit the movement
of workers to within 15 feet of the roof edge when fall protection is
not installed and available for use (see Section F below for a
discussion of fall protection on rooftops across industries covered by
Sec.  1910.28, Duty to have fall protection). OSHA's final analysis of
compliance costs for rooftop inspections addressed by final Sec.
1910.28(b)(13), Work on low-slope roofs, includes costs for the
installation of fall-arrest anchorages for the small percentage of
inspections that identify hazardous conditions at or near roof edges
(see discussion in the section ``Cost Estimates'', below). These
additional rooftop inspections and fall-system enhancements are
expected to contribute to the benefits of reduced fatalities and
injuries.
    Two chimney-sweep accidents reported in OSHA's IMIS database (OSHA,
2012a) illustrate the benefits achievable under the final standard. In
the first accident (Inspection No. 311734842), an employee of a
Maryland chimney-sweep business died from impact injuries to the head
and neck after apparently falling 15 feet. Although no one witnessed
the accident, it appears, based on evidence at the scene and an
interview with the homeowner, that the employee was using a 12-foot
section of a ladder to gain access to three roof levels: the primary
roof, the porch roof, and the roof peak. Inspectors found no roof
perimeter guardrail or anchorage-based personal fall protection
equipment at the site. OSHA believes the final standard at Sec.
1910.28 would prevent such a fall because the employer would have to
provide fall protection for an employee exposed to a height of four
feet or greater.
    In a second chimney-cleaning accident identified by OSHA
(Inspection No. 307309054), employees of an air-duct and chimney-
service company were installing a protective cap on a chimney. One of
the employees was using a 2-foot stepladder leaning against the chimney
chase to access the top of the chimney when he fell 24 feet. OSHA's
investigation of the fatality showed that the employee was not using
personal fall protection equipment, a safety measure required by the
final standard.
    For this final analysis of benefits, OSHA increased the prevention
rate for ladders to 20 percent (from 15 percent in the PEA) because the
requirement in the final rule for safety systems on all fixed ladders,
including outdoor advertising, will substantially reduce the number of
ladder-related accidents.
    In addition, OSHA believes that the increased level of worker
training on ladder safety systems required by the final rule, and the
heightened recognition of the fall hazards associated with ladder
safety systems resulting from this training, will yield a

higher percentage of accident avoidance than preliminarily estimated by
the Agency in the PEA.
    OSHA also increased the prevention rate for falls to lower level,
not elsewhere classified, to 5 percent (from 2.5 percent in the PEA)
based on the requirements for step bolts in the final rule. OSHA
revised its preliminary estimate of the prevention rate based on its
determination that employers will increase use of ladder safety systems
combined with personal fall protection on structures covered by the
final rule that currently use only step bolts or ladders without ladder
safety systems, such as pole-mounted lights at sports and performance
arenas and other tall structures.
    For falls from scaffolds or staging, OSHA judged a prevention rate
of 40 percent in the PEA. No commenters raised objections to this
estimate, so OSHA retained it for this FEA. OSHA believes that this
estimate is reasonable because, according to OSHA and BLS accident
data, approximately 40 percent of lost-workday scaffold accidents
involve rope-descent systems. Therefore, in view of the final
standard's comprehensive coverage of these systems, OSHA believes that
it is reasonable to expect that the final standard will prevent at
least 40 percent of deaths and injuries associated with scaffolds.
    In addition, Table V-11 shows that falls from scaffolds or staging
is a leading category of falls in general industry. According to the
Bureau of Labor Statistics, such falls caused an average of 18 deaths
and 1,474 lost-workday injuries yearly over a recent eleven-year period
(1992-2002). For the PEA, OSHA reviewed a subset of scaffold accidents
recorded in the Agency's Integrated Management Information System
(IMIS) database to expand ERG's analysis of the extent to which the
proposed standard would prevent accidents involving commercial window
cleaning to gain additional information on prevention of fatal falls
(OSHA, 2009). Accordingly, OSHA reviewed 36 incidents (some involving
multiple casualties) that occurred during the period January 1995 to
October 2001 in which a fall from an elevated scaffold or a similar
surface during commercial window cleaning operations either killed or
injured workers in general industry. OSHA then applied expert judgment
to make determinations about which of these incidents would be
preventable by full compliance with each of the following standards:
    1. The existing standard for walking-working surfaces;
    2. A 1991 memorandum to regional administrators that describes the
safe use of descent-control devices (i.e., rope-descent systems or
RDSs) by employees performing building exterior cleaning, inspection,
and maintenance (OSHA, 1991a), which were incorporated into ANSI/IWCA
I-14.1, Window Cleaning Safety Standard; or
    3. The final standard.
    Table V-12 below summarizes OSHA's analysis of the IMIS window
cleaning incidents. Table V-12 shows that the existing standard did not
account for incidents in three of the four cause-of-incident
categories. The existing standard could not account for these incidents
because it has no provisions that directly regulate RDSs. Accordingly,
OSHA believes that full compliance with the existing standard would not
prevent these incidents.
[GRAPHIC] [TIFF OMITTED] TR18NO16.199

    The 21 RDS incidents in the category titled ``Malfunction/
Mishandling of Rope Descent System or Lifelines'' typically involved a
malfunction in, or unsafe use of, an RDS rope descent systems
(including lifelines). OSHA determined that safety conditions specified
in its 1991 memorandum could prevent 19 of these incidents. The final
rule could prevent these 19 RDS incidents, as well as the remaining two
RDS incidents. As noted earlier, OSHA's existing subpart D would not
prevent any of the RDS incidents in this category.
    One of the primary causes of accidents in commercial window
cleaning is the failure of the rooftop anchorage to support the
suspended scaffold, the second cause-of-incident category in Table V-
12. The final standard requires that employers use proper rigging,
including sound anchorages and tiebacks, with RDS. OSHA identified
eight incidents in the IMIS database for which anchorage failure
contributed to the incident. In OSHA's judgment, all eight anchorage-
related incidents involved factors addressed by the final standard and,
therefore, would be preventable under that standard. All but one of
these eight incidents involved factors addressed by the 1991 OSHA memo.
    The third cause-of-incident category in Table V-12 addresses
accidents that are less likely to occur when employers train workers
adequately--for example, in the proper use of harnesses and lifelines.
OSHA identified 14 incidents in the IMIS database in which death or
injury to a worker would be preventable had the worker applied the
training required by the final standard. Of these 14 cases, 12 involved
factors addressed by the 1991 OSHA 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 cleaning
operations. The fourth cause-of-incident category in Table V-12
addresses these incidents. OSHA determined that provisions in the
existing standard would prevent four of these incidents, while the
provisions of the final standard would prevent six of them. The 1991
OSHA memo had no provisions that would prevent these incidents.
    OSHA believes that this analysis illustrates some of the
complexities in assigning benefits to the final standard. Chief among
these complexities is the assumption that full compliance with the
final standard will prevent fatalities not preventable by the existing
standard due to the addition in the final standard of major
requirements addressing window cleaning operations.
    Second, there is the question of the proper baseline for such an
analysis. Prior to publication of the final standard, while OSHA did
not have a rule addressing RDSs or anchorages for these systems and
suspended scaffolds, OSHA could use national consensus standards and
enforcement policies, in concert with the general duty clause, to
prompt employers to prevent falls to lower levels. Therefore,
reductions in fall-related incidents likely occurred as a result of
this enforcement practice, even if OSHA applied this practice
irregularly. However, OSHA has not treated the 1991 memo as the
baseline for either benefits or costs, but has instead estimated costs
for most activities required by the 1991 memo and benefits from the
current levels of compliance.
    Third, there is the issue, already discussed, of how to treat the
benefits of training requirements. OSHA normally assumes full
compliance with a rule for the purposes of both benefit and cost
analysis. For some provisions in a rule, the Agency can readily
determine whether full compliance with the rule would prevent an
incident. However, for training provisions, it is difficult to
determine whether full compliance with the training requirements would
prevent the incidents the training is addressing (Seong and Mendeloff,
2004). OSHA's resulting estimate of the effects of the training
requirements is specified by Table V-11. According to OSHA's
determinations summarized in Table V-12, adequate training, if the
instructions in training were followed, could have prevented up to 14
of the 36 window cleaning fall-related incidents reported in IMIS.
    Based on the PEA and the rulemaking record, and applying the
fatality-prevention rate for scaffolds explained above, OSHA concludes
that the final standards will prevent 29 fall fatalities a year, i.e.,
the final standards would prevent approximately 8 percent of the fatal
falls in general industry.
b. Injuries Prevented
    For the purposes of estimating the number of lost-workday injuries
prevented by the final standards, OSHA applied the same prevention
factors to lost-workday injuries that it assigned to the defined
categories of fatal falls. Table V-13 shows, by type of fall, the
distribution of lost-workday injuries for general industry; these
injury categories duplicate the categories 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 22.3 percent are
the result of falls from ladders. Averaging total lost-workday fall
injuries for 2006-2012, OSHA estimates that 202,066 lost-workday fall
injuries occur each year for work operations directly affected by the
final revisions to subparts D and I (see Ex. [OSHA Excel Workbook],
tabs Injury Fall % 2006-2012 and Prevented Injuries '06-'12).
    For this FEA, OSHA notes a significant addition to its preliminary
analysis of benefits. In the PEA, OSHA primarily focused on the
benefits of preventing falls to a lower level because of the relatively
greater certainty of accident avoidance associated with the required
control strategies that OSHA anticipates employers will apply to
ladders, scaffolds, rope descent systems, roofs, and other elevated
surfaces after the Agency issues the final rule. However, based on
testimony in the record (Exs. 329 (1/20/2011, pp. 42, 60-61); 329 (1/
21/2011, pp. 200-203); 330), OSHA expanded its analysis to include the
benefits of preventing slips, trips, and falls on the same level. As
shown in Table V-8, 2006-2012 BLS data indicate that falls on the same
level resulted in 137,079 lost-workday injuries in work activities in
general industry affected by the final rule. OSHA estimates that the
provisions of final subpart D addressing general conditions (Sec.
1910.22) will prevent 1 percent of these accidents, or 1,371 injuries.
The 1% prevention rate assumes that the time employers will expend to
inspect (two hours per year) and correct hazards (20 minutes for the 10
percent of establishments with unsafe conditions) in compliance with
1910.22(d) will lead to this reduction. This estimate is uncertain, and
we examined other prevention rates in our sensitivity analysis.\116\
---------------------------------------------------------------------------

    \116\ Other sections of the standard may indirectly prevent
falls on the same level.
---------------------------------------------------------------------------

    Using the prevention estimates described above for falls on the
same level and the prevention estimates applied to fatal incidents
involving falls to a lower level, OSHA estimates that compliance with
final subparts D and I will prevent 5,842 lost-workday fall injuries
annually. OSHA recognizes that this prevented-injuries estimate is a 58
percent increase over the preliminary estimate (i.e., 3,706 prevented
injuries); however, OSHA believes that this estimate accurately
captures the full range of accidents that the final rule addresses.
BILLING CODE 4510-29-P

[GRAPHIC] [TIFF OMITTED] TR18NO16.200

4. Nonquantifiable Benefits
    As noted earlier in this FEA, OSHA did not estimate the
improvements in the efficiency of compliance associated with clarifying
the existing rule and making it consistent with current national
consensus standards. In addition to the benefits associated with those
factors, OSHA anticipates that improvements to its walking-working
surfaces standard in general industry will yield further benefits. In
the following exhibit and in the discussion that follows, OSHA
highlights the key substantive differences introduced by the final
rule.
[GRAPHIC] [TIFF OMITTED] TR18NO16.201

[GRAPHIC] [TIFF OMITTED] TR18NO16.202

[GRAPHIC] [TIFF OMITTED] TR18NO16.203

[GRAPHIC] [TIFF OMITTED] TR18NO16.204

[GRAPHIC] [TIFF OMITTED] TR18NO16.205

[GRAPHIC] [TIFF OMITTED] TR18NO16.206

[GRAPHIC] [TIFF OMITTED] TR18NO16.207

[GRAPHIC] [TIFF OMITTED] TR18NO16.208

BILLING CODE 4510-29-C

    Earlier in this preamble, in the summary and explanation of final
Sec.  1910.28 Duty to have fall protection and falling-object
protection, OSHA described the means by which the final standard
provides greater flexibility in controls than is found in the current
walking-working standard for preventing slip, trip, and fall accidents.
OSHA believes that expanding control flexibility will produce
nonquantifiable benefits, and in the following discussion, the Agency
reiterates the factors that will help generate the nonquantified
benefits supplementing the quantified benefits shown in Impacts Exhibit
V-1 and in Tables V-11 and V-13 in this FEA.
    This rule, like the construction fall protection standard, allows
general industry employers, similar to construction employers, to
protect workers from falls hazards by choosing from a range of
acceptable fall protection options. The existing general industry
standard, however, mandated the use of guardrail systems as the primary
fall protection method (e.g., see existing Sec.  1910.23(c)).
    The 1990 proposed revision of subpart D continued to require the
use of guardrail systems. However, in the 2003 notice reopening the
record, OSHA acknowledged that it may not be feasible to use guardrails
in all workplace situations (68 FR 23528, 23533 (5/2/2003)) and
requested comment on whether the Agency should allow employers to use
other fall protection systems instead of guardrails. Commenters
overwhelmingly favored this approach, which the construction fall
protection standard adopted in 1994. In response to comments and OSHA's
history and experience with the construction fall protection standard,
the Agency proposed allowing employers to select from a range of fall
protection options instead of requiring employers to comply with the
existing mandate to use guardrail systems.
    OSHA is adopting the proposed approach for several reasons. First,
OSHA believes giving general industry employers flexibility in
selecting fall and falling-object protection systems allows them to
select the system or method that they determine will work best for the
particular work operation and location. Such flexibility allows
employers to consider factors such as exposure time, availability of
appropriate attachment points, feasibility, cost effectiveness, and
cost constraints when selecting the appropriate fall protection system
for the work activity.
    Second, providing control flexibility allows general industry
employers to take advantage of advances in fall protection technology
developed since OSHA adopted the existing rule. The existing rule, by
contrast, limited choices in fall protection technology.
    Third, making the final rule consistent with the construction
standard ensures that employers who have workers engaged in both
general industry and construction activities are able to use the same
fall and falling-object protection while performing both types of
activities. It eliminates the need to purchase different fall
protection systems when their workers perform general industry
operations. Thus, making the general industry and construction rules
consistent ensures that final rule is a cost-effective approach for
reducing significant risk of harm. As a result, OSHA believes that the
additional flexibility and consistency achieved by this final rule in
providing fall protection will reduce worker deaths and injuries.
    OSHA believes the comprehensive approach to fall protection (that
is, duty to provide fall protection, mandatory criteria for controls,
regular inspections, and training) that the final rule and the
construction fall protection standard incorporate will provide
equivalent or greater protection than the existing rule. In addition,
the greater flexibility the final rule affords employers will allow
them to select the fall protection option that works best in the
specific situation and is the most cost-effective protective measure
capable of reducing or eliminating significant risk of harm. Moreover,
the comprehensive approach in the final rule, like the construction
fall protection standard, recognizes that, in some instances, it may
not be possible to use guardrail systems or other passive controls to
protect workers from falls. For example, employers may not be able to
install permanent systems such as guardrails when they do not own the
building or structure on which their employees are working. OSHA
believes the final rule addresses the concerns of these commenters
without limiting employer flexibility or compromising worker safety.
    As mentioned, the final rule limits fall protection choices in some
situations where the Agency determined that passive/permanent systems
provide the requisite level of protection. For example, in final
paragraph (b)(5), OSHA specifically requires the use of guardrails on
runways and similar walkways. Likewise, guardrail systems or travel
restraint systems are the only systems that employers may use to
protect workers on slaughter-house platforms (see final paragraph
(b)(14)). In these cases, OSHA limited employers' choices to those
systems that are possible to use on those walking-working surfaces and
that provide an adequate and appropriate level of safety.
    The final rule also establishes criteria and work practices
addressing personal fall protection systems (Sec.  1910.140). These
criteria include minimum strength and load, locking, and compatibility
requirements for components of personal fall protection systems, such
as lines (vertical lifelines, self-retracting lines, travel restraint
lines), snaphooks, and anchorages. The work practices include requiring
employers to ensure inspection of personal fall protection systems
before the initial use during each work shift, and to ensure that a
competent or qualified person inspects each knot in a lanyard or
vertical lifeline. OSHA believes that these criteria and work
practices, in conjunction with the training and retraining requirements
in the final rule, provide a combination of controls and redundancies
that will help to ensure that personal fall protection systems are
effective in protecting workers from falls hazards.
c. Public Comment on Benefits
    OSHA requested comment on the Agency's preliminary analysis of the
scaffold accidents described above, and on the various approaches used
to determine the estimated benefits achievable from compliance with the
other provisions of the proposed standard. The following discussion
presents OSHA's summary of the public comments received on OSHA's
preliminary benefits analysis.
    The National Chimney Sweep Guild (NCSG) questioned the benefits of
a fall protection system that involved the use of an anchorage, travel
restraint lines, and harnesses for repair and maintenance activities on
a residential roof:

    Given that the average time on the roof for a typical chimney
service is between five and twenty minutes, we believe it is clear
that the installation of a single roof anchor (taking 45 to 90
minutes) would expose the chimney sweep to greater hazards for a
longer period of time. Installation of the anchor requires extra
equipment to be taken to the roof, and increases the number of
ground to roof trips. We believe one of the highest hazards is the
ladder to roof transition, both getting onto and off of the roof.
The work required to install the roof anchor(s) would significantly
increase the number of ladder to roof to ladder transition cycles.
Furthermore, the anchor would not provide any fall protection during
the period before the sweep could attach to it or during the period
after the sweep detached from it.
    In conclusion, the installation of a roof anchor point roughly
equals the cost of an

average chimney cleaning or inspection service, requires
significantly more ladder to roof to ladder transitions, keeps the
technician working on the roof for a substantially longer period of
time than would be required to perform the average chimney cleaning
or inspection service, and would not provide fall protection for the
ladder to roof and roof to ladder transitions. Accordingly, we
believe it is clear that it is economically infeasible (in the rare
circumstance where it would be acceptable to a homeowner) and would
expose the technician to a greater hazard to require the
installation of the anchor(s) that would be necessary to use a
personal fall arrest system, a travel restraint system or a safety
net while performing the great majority of the tasks performed by
sweeps (Ex. 150, pp. 30-31).

    In this quotation, NCSG argued that, in many cases, the
installation of a roof anchor would involve greater hazard, and
challenged OSHA's determination that it is feasible to apply these fall
protection systems for chimney or other roof work.
    With respect to the issue of greater hazard, while some chimney
sweep jobs are relatively short (e.g., chimney cleaning and inspection,
minor repairs), some are much longer than five to 20 minutes (e.g.,
substantial and major installations and repairs) (Exhibit 150). A
simple chimney cleaning job typically involves no time on the roof
except possibly a short inspection of the exterior of the chimney after
the cleaning is finished (Ex. 150; 329 (1/18/2011, p. 267, 270, 276-
277, 301)). OSHA has modified the rules so roof anchorages are not
required for inspections prior to starting work or after completing
work (Sec.  1910.28(a)(2)(ii)). As a result, most short chimney
cleaning and inspection jobs will not require use of anchorages and
fall protection. In those situations where work actually needs to be
done on a roof, and thus more time will be required on the roof, OSHA
has modified the rule to except requirements for anchorages in
situations where employers can demonstrate that installing anchorages
for personal fall arrest systems as well as using any other
conventional fall protection is infeasible or creates a greater hazard
(Sec.  1910.28(b)(1)(ii)). Because the length of chimney sweep jobs
varies widely as does the time to install anchors, individual
determinations on whether installation of personal fall protection
anchorages would make the job more dangerous than not using the
required fall protection are required. Where anchorages are infeasible
or create a greater hazard, employers must develop and implement a fall
protection plan, including implementing other control measures, to
eliminate or reduce fall hazard hazards for workers.
    OSHA also differs with the NCSG's statement above with respect to
time requirements and expense for installing fall protections. In
response to a question from the OSHA panel on the feasibility and
potential benefits of anchorage and lifeline systems on roofs, a
representative of the Industrial Safety Equipment Association stated in
the public hearing:

    In the event of existing construction there are permanent roof
anchors that can be installed on residential structures and other
types of facilities, buildings and so on that can be installed after
the construction. And depending upon the type of construction, those
can range in cost anywhere from, you know, $35 to a few hundred
dollars. And they have varying degrees of installation, again
depending upon the type of structure.
    There are also--if it's new construction there are different
construction techniques where the anchors can be installed, for
instance, on the roof truss before the truss is put up into place so
that the anchor's already up there and then you can use first man
type systems to anchor your lifeline on the ground before the worker
has to climb to do the work at the height.
    So there are various types of roof anchor products. And you
know, I would--every fall protection equipment manufacturer
manufactures a number of different types specifically for the
roofing industry (Ex. 329 (1/18/2011), pp. 176-177).

OSHA also notes that where an employer can show that it is not feasible
to use guardrails, safety nets, or personal fall protection systems in
work on residential roofs (or it creates a greater hazard), the final
rule requires the employer to develop and implement a fall protection
plan and training meeting the requirements of the construction standard
(final rule Sec.  1910.28(b)(1)(ii)).

    Charles Lankford of Rios & Lankford Consulting International
challenged OSHA's finding in the PEA that fatalities involving falls
represent a risk so significant that only a revised standard with a
scope covering all of general industry will address the problem:

    The relative ranking of falls appears to have more to do with
the falling rate of workplace homicides than with an increase in
fatal falls, since the rate of fatal falls has remained fairly
constant at around 5 and 6 fatal falls per million employees for
decades.
    While it is true that fatal falls were 14% of all fatalities
(2009 BLS data), this was not evenly distributed among the
industrial sectors. In the ``goods producing'' sector, falls were
the second (or third) leading cause of death, and were ten times
more likely than a homicide to be the cause of death. This is the
major category that includes mining, agriculture, construction and
manufacturing.
    In contrast, in the service sector, falls were the third (or
fourth) leading cause of death. In the service sector overall,
homicides were twice as likely to be the cause of death as a fall.
In some NAIC codes, homicides were 4 times more likely to be the
cause of death than a fall. The service sectors where fatal falls
were relatively more likely were: (1) Durable goods wholesale; (2)
utilities; (3) information; and (4) administrative and waste
services.
    I've focused on fatal falls data rather than non-fatal falls
because the non-fatal data are more subject to variations from
record-keeping interpretations, data initiatives, etc.
    Never-the-less historical incident rates for non-fatal falls
also do not display an increasing fall problem. The all-industries
non-fatal fall incidence rate has declined every year since 2003
(the oldest year in the BLS Table I consulted), so the decline in
rates is not attributable to the current recession. If we exclude
2008 and 2009 data, manufacturing did not show a change. Yet 2006
and 2007 showed lower injury incidence rates than 2003 and 2004 (Ex.
368).

In response to Mr. Lankford's comment, OSHA notes that, combining data
taken from Tables V-1 and V-13, the roughly 5.2 million workers
directly exposed to fall hazards had approximately 187,000 lost-workday
injuries resulting from falls each year, or 36 injuries per 1,000
workers annually. The hazards faced by these employees are similar,
even though they work in a broad range of industries. OSHA believes, as
indicated by Mr. Lankford's comment, that the risk of fall-related
injuries, combined with the risk of fall-related fatalities, remained
at a constant rate in recent years and that the final rule will help
prevent a substantial number of them. Accordingly, OSHA concludes that
falls constitute a safety threat best addressed by the final rule's
revisions to existing subparts D and I.
d. Monetized Benefits, Net Benefits, and Cost Effectiveness
    The previous section showed that OSHA judges that complete
compliance with the revised standard will result in the prevention of
29 deaths and 5,842 lost-workday injuries each year. Consistent with
current federal regulatory methodologies recommended by OMB Circular A-
4, discussed below, the Agency assigned a dollar value to these safety
benefits.
    In estimating the value of preventing a fatality, OSHA followed the
approach established by the U.S. Environmental Protection Agency (EPA).
EPA's Guidelines for Preparing Economic Analyses provides a detailed
review of methods used to estimate mortality-risk values, and
summarizes the values obtained in the literature (EPA, 2000).
Synthesizing the results from 26 relevant studies, EPA arrived at a
mean

value for a statistical life (VSL) of $4.8 million (in 1990 dollars).
EPA recommends this central estimate, updated for inflation, for
application in regulatory analyses.
    Viscusi and Aldy (2003) presented a metaanalysis of studies in the
economics literature that used a willingness-to-pay (WTP) methodology
to estimate the imputed value of life-saving programs, and arrived at a
value of approximately $7.0 for each avoided fatality. Applying the GDP
deflator (U.S. BEA, 2010), this $7.0-million base number in 2000
dollars yields an estimate of $8.7 million in 2010 dollars for each
fatality avoided.
    This VSL estimate is consistent with EPA's estimate, and is also
within the range of the substantial majority of such estimates in the
literature ($1 million to $10 million per statistical life), as
discussed in OMB Circular A-4 (OMB, 2003). Applying a VSL of $8.7
million to the estimated number of prevented fatalities, OSHA estimates
that the dollar value of the benefits associated with preventing fatal
accidents from compliance with revised subparts D and I will be $252.3
million annually.
    OSHA also reviewed the available research literature regarding the
dollar value of preventing an injury. In the paper cited immediately
above, Viscusi and Aldy conducted a critical review of 39 studies
estimating the value of a statistical injury (Viscusi and Aldy, 2003).
In their paper, Viscusi and Aldy reviewed the available WTP literature
to identify a suitable range of estimates; using WTP to value non-fatal
injuries is the approach recommended in OMB Circular A-4.
    Viscusi and Aldy found that most studies resulted in estimates in
the range of $20,000 to $70,000 per injury (in 2000 dollars), although
several studies resulted in higher estimates. That some studies used an
overall injury rate, and others used only injuries resulting in lost
workdays, partly explains the variation in these estimates. The
injuries prevented by final subparts D and I often involve
hospitalization and, therefore, are likely to be more severe than the
majority of lost-workday injuries. In addition, injuries resulting from
falls involve more pain and suffering, more expensive treatments, and
generally longer recovery periods than other lost-workday
injuries.\117\
---------------------------------------------------------------------------

    \117\ In 2009, the median number of days away from work was 14
days for falls to a lower level, whereas the median number of days
away from work for all events or exposures leading to injury or
illness was 8 days (BLS, 2012). For more discussion of this issue,
see Part II of this document.
---------------------------------------------------------------------------

    Thus, it is reasonable to believe that the value of a statistical
injury for this rulemaking will be in the upper part of the reported
range of estimates. Nevertheless, in the preliminary benefits analysis
discussed in the PEA, OSHA used a mid-range estimate--$50,000--to
assess monetized benefits for injuries and, for this FEA, raised that
estimate to $62,000 (2010 dollars) to account for a rise in the cost of
living since 2000, the base year for the monetized values estimated by
Viscusi and Aldy when the authors published their 2003 study. Thus,
with an estimated 5,842 injuries a year prevented by the final
standards, OSHA determined that the dollar value of prevented injuries
through compliance with revised subparts D and I will total $362.2
million annually.
    OSHA estimates that the combined dollar value of prevented
fatalities and injuries through compliance with the final revisions to
subparts D and I will total $615 million per year. Comparing gross
monetized benefits with costs of compliance (discussed in more detail
in section V.F, below), OSHA estimates that the net monetized benefits
of the final standard will be $310 million ($615 million in benefits--
$305.0 million in compliance costs; all figures rounded). Table V-14
summarizes the compliance costs, benefits, net benefits, and cost
effectiveness of the final standards.
    There are other benefits of the final standards that OSHA neither
quantified nor monetized. First, OSHA did not estimate the number of
fall injuries prevented that do not result in lost workdays. Second,
OSHA did not estimate improvements in the efficiency of compliance
associated with clarifying the existing rule and bringing it into
closer correspondence with current voluntary standards.

BILLING CODE 4510-29-P

[GRAPHIC] [TIFF OMITTED] TR18NO16.209

BILLING CODE 4510-29-C

E. Technological Feasibility

    OSHA reviewed the substantial evidence collected throughout this
rulemaking, including the data and comments submitted to the record in
response to the earlier proposed standard published on April 10, 1990,
the notice reopening the record published on May 2, 2003, and the
recent NPRM (May 24, 2010). Accordingly, OSHA determined that
compliance with the final revisions to subparts D, I, and other
subparts in 29 CFR part 1910 (general industry), as described in this
final rule, is technologically feasible. This subsection presents the
details of this conclusion with regard to specific requirements.
1. Technological Feasibility for Final Subpart D (Walking-Working
Surfaces)
General Requirements (Sec.  1910.22)
    Section 1910.22 of final subpart D revises existing requirements
addressing housekeeping, safe aisles and passageways, covers and
guardrails, and floor-loading protection, and introduces new
requirements associated with broad areas of safety on walking-working
surfaces. Final paragraphs (a), (b), (c), and (d) of this section
address, respectively, surface conditions, application of loads, access
and egress, and inspection, maintenance, and repair. OSHA received no
testimony in the record suggesting that there would be feasibility
concerns with final Sec.  1910.22.
    Final paragraph (a) requires that employers keep all walking-
working surfaces in a clean, dry, orderly, and sanitary condition, and
free of hazards such as sharp or protruding objects, loose boards,
corrosion, leaks, and spills. Data in OSHA's inspection file analyzed
by ERG (ERG, 2007) indicate a high level of compliance with similar
requirements in existing subpart D, suggesting that there have been
few, if any, technical challenges to employers; therefore, this
provision is technologically feasible.
    Final Sec.  1910.22(b) requires that employers ensure that each
walking-working surface can support the maximum intended load for that
surface. This language restates and simplifies the existing regulatory
text, and should not present any technological feasibility
difficulties. The next provision, final Sec.  1910.22(c), requires that
employers provide employees with, and ensure that they use, a safe
means of access and egress to and from walking-working surfaces.
Although new, this requirement, in OSHA's judgment, will not impose any
duties on employers beyond the limits of feasibility.
    Paragraph (d) of final Sec.  1910.22 requires employers to
regularly inspect and maintain, as necessary, all walking and working
surfaces in a safe condition. Employers also must correct and repair
all hazardous conditions on walking-working surfaces before employees
use them, and guard the surfaces until completing repairs to prevent
employee use. A qualified employee must perform or supervise any
correction or repair that involves the structural integrity of a
walking-working surface. Employers can accomplish the inspection,
maintenance, repair, and guarding of surfaces with technologically
feasible and currently available methods.
Ladders (Sec.  1910.23)
    Final Sec.  1910.23 covers ladders. Accordingly, final Sec.
1910.23(a) specifies that the section applies to all ladders except for
ladders used only for firefighting, rescue operations, tactical law
enforcement operations, or training for these operations, and ladders
designed into, or are an integral part of, a machine or piece of
equipment. In addition, final Sec.  1910.23(b) provides general
requirements for all ladders; final paragraph (c) addresses portable
ladders; final paragraph (d) presents standards for fixed ladders; and
final paragraph (e) addresses mobile ladder stands and mobile ladder
stand platforms. OSHA based the requirements in this section partly on
current American National Standards Institute (ANSI) standards, A14
series. The ANSI standards provide guidelines for industry, and are
generally compatible with current industry practices and technology.
Since manufacturers make and test virtually all manufactured ladders to
meet these ANSI standards, OSHA believes there will be few problems
regarding technological feasibility.
    Most of the requirements for ladders in final subpart D do not
represent any change from existing OSHA requirements. For both existing
and new requirements, current and readily available technology is
capable of meeting or exceeding the design and strength criteria
specified for ladders. The final language is clearer and more concise
than the existing regulatory text. Moreover, OSHA introduced greater
compliance flexibility into the final standard, such as in the case of
the range provided in the spacing requirements for rungs, cleats, and
steps (see final Sec.  1910.23(b)).
    Comments submitted to the docket in response to the 1990 proposed
rule generally confirmed OSHA's preliminary conclusion that compliance
with the proposed requirements for ladders would be technologically
feasible. Although several commenters addressed the appropriateness or
the costs associated with the proposed ladder requirements, they did
not question the technological feasibility of the requirements.
Similarly, during the reopening of the record following publication of
the 2010 NPRM, commenters raised concerns about the potential costs for
protecting workers on ladders in particular circumstances (see, for
example, Exs. 121; 301; 342) or the rationale for excluding ladders
from the duty to provide fall protection for heights above four feet
(Ex. 185). However, there was no evidence presented that would suggest
that the final standard for ladders is technologically infeasible.
    OSHA grouped training in the proper care, use, and inspection of
ladders with other training requirements under final Sec.  1910.30.
Compliance with these training requirements does not require any
additional or new technology.
Step Bolts and Manhole Steps (Sec.  1910.24)
    Final subpart D provisions for step bolts and manhole steps address
basic criteria for the safe design, construction, and use of these
components. For example, final Sec.  1910.24(a)(3) specifies uniform
spacing of step bolts between 12 inches (30 cm) and 18 inches (46 cm)
measured center to center, while Sec.  1910.24(b)(2)(iv) requires
uniform spacing of manhole steps not more than 16 inches (41 cm) apart.
Although these requirements will be new to subpart D, OSHA based the
engineering criteria on consensus standards established by the American
Society for Testing and Materials (ASTM), which have wide acceptance
throughout industry. Therefore, OSHA believes that existing technology
is capable of meeting these performance criteria and that this
technology is feasible to apply.
Stairways (Sec.  1910.25)
    Section 1910.25 in the final standard describes OSHA safety
specifications for stairs, and covers all types of stairs except stairs
serving floating roof tanks; stairs on scaffolds; stairs designed into
machines or pieces of equipment; and stairs on self-propelled motorized
equipment. Requirements in this section address the obligations to
install handrails, stair-rail systems, and guardrail systems, as
necessary. Other requirements in this section describe design
specifications such as the appropriate load capacities that stairs

must be able to support, minimum vertical clearances for different
types of stairs, the height of risers, the depth of treads, and the
proper angle of stairs. These requirements are not substantially
different from the requirements of the existing standard; OSHA drew the
requirements from NFPA and ANSI consensus codes, indicating that
industry already adopted the requirements as a feasible industry
practice using existing technology.
Dockboards (Sec.  1910.26)
    Section 1910.26 provides for the safe movement of personnel and
equipment on dockboards (defined in the final standard to include
bridge plates and dock plates), and relocates, updates, and clarifies
requirements for dockboards located in existing Sec.  1910.30, Other
working surfaces. The design, construction, and maintenance of these
surfaces must be such as to support their maximum intended load and
prevent transfer vehicles from running off the edge. According to final
Sec.  1910.26(c), employers must secure portable dockboards with
anchors or other means, when feasible, to prevent displacement while in
use. Other requirements in this section prevent the sudden displacement
of vehicles on dockboards that are in use, and require handholds or
other means for safe handling. Compliance with the final requirements
for dockboards does not necessitate the use of any new technologies,
materials, or production methods; thus, this section is technologically
feasible.
Scaffolds and Rope Descent Systems (Sec.  1910.27)
    Section 1910.27 introduces to subpart D the existing requirements
for scaffolds in the construction standards. Thus, for final subpart D,
OSHA directly references subpart L in 29 CFR part 1926. In addition,
new requirements for rope descent systems will include inspection prior
to each workshift; proper rigging; a separate personal fall arrest
system; minimum strength criteria for lines used to handle loads;
establishment of rescue procedures; effective padding for ropes; and
stabilization for descents greater than 130 feet. In addition, final
Sec.  1910.27(b)(2) prohibits the use of rope descent systems for
heights greater than 300 feet (91 m) above grade unless the employer
can demonstrate that it is not feasible to access such heights by any
other means or those other means pose a greater hazard than using RDS.
Although new to subpart D, industry adopted these and other
specifications for the safe use of scaffolds many years ago owing to
the publication of ANSI I-14.1-2001, Window Cleaning Safety (Ex. 14),
and a March 12, 1991, OSHA memorandum to Regional Administrators
addressing the ANSI standard and the provisions listed above (Ex. OSHA-
S029-2006-0662-0019). Therefore, OSHA judges the requirements in this
new section on scaffolds to be technologically feasible.
Duty To Have Fall Protection and Falling-Object Protection (Sec.
1910.28)
    Section 1910.28 restates, clarifies, and adds flexibility and
consistency to existing OSHA requirements for providing fall protection
to employees. In addition to general requirements for the strength and
structural integrity of walking-working surfaces (with reference to
Sec.  1910.29, Fall and falling-object protection systems criteria and
practices), this section of the final rule also includes detailed
specifications on the following surfaces for which employers have a
duty to provide fall protection:
     Unprotected sides and edges;
     Hoist areas;
     Holes;
     Dockboards;
     Runways and similar walkways;
     Dangerous equipment;
     Wall openings;
     Repair pits, service pits, and assembly pits less than 10
feet in depth;
     Fixed ladders (that extend more than 24 feet (7.3 m) above
a lower level);
     Outdoor advertising (billboards);
     Stairways;
     Scaffolds and rope descent systems;
     Work on low-slope roofs;
     Slaughtering facility platforms; and
     Walking-working surfaces not otherwise addressed.
    Hazards on walking-working surfaces can include accidental
displacement of materials and equipment. To prevent objects from
falling to lower levels and to protect employees from the hazards of
falling objects, final Sec.  1910.28(c) requires head protection and
screens, toeboards, canopy structures, barricades, or other measures.
    The final subpart D standards reaffirm the existing Agency
interpretation and enforcement practice that fall protection is
generally necessary for fall hazards associated with unprotected sides
or edges of any surface presenting a fall hazard of four feet or more.
In this regard, the obligation of employers to provide fall protection
remains substantially unchanged from existing requirements in final
subpart D.
    Whereas the existing requirements specify that employers must
protect employees by installing standard guardrail systems or
equivalent systems, the final standard more clearly allows employers to
provide fall protection through any of several methods, including
guardrails, personal fall arrest systems, and safety nets. OSHA
recognizes that some work surfaces may present difficult challenges for
applying fall protection. One participant in the 1990 NPRM (Ex. OSHA-
S041-2006-0666-0194) pointed out that maintenance work may require that
employees be on equipment such as compressors, turbines, or pipe racks
at elevations in the range of 4 to 10 feet above lower surfaces, and
that guardrails, platforms, ladders, or tying off would not always be
possible in such situations. In the current rulemaking for walking-
working surfaces, the Sheet Metal and Air Conditioning Contractors
National Association (SMACNA) (Ex. 165) appeared to express a similar
concern with respect to the duty to provide fall protection in a
manufacturing plant. OSHA notes that its enforcement procedures allow
special consideration in unique circumstances when compliance with a
particular standard may not be feasible or appropriate.\118\
---------------------------------------------------------------------------

    \118\ See OSHA's Field Operation Manual: http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdf.
---------------------------------------------------------------------------

    In general, employers should be able to address and eliminate
employee exposures to potential slip, trip, and fall hazards by
planning and designing adequate facilities and work procedures. Based
on widespread industry practice, OSHA concludes that the fall
protection requirements specified by this section of the final
standards are technologically feasible.
Fall Protection Systems and Falling-Object Protection--Criteria and
Practices (Sec.  1910.29)
    In Sec.  1910.29, OSHA specifies or provides references for revised
criteria for fall protection systems such as guardrail systems;
handrails; stair rail systems; cages, wells, and platforms used with
fixed ladders; toeboards; designated areas; travel restraint systems;
safety net systems; grab handles; and fall protection for the outdoor
advertising industry. Final Sec.  1910.140, discussed at length below,
provides criteria for personal fall protection systems that OSHA is
adding to existing subpart I through this rulemaking.
    With regard to guardrail systems (Sec.  1910.29(b)), the final
subpart D standards do not substantially modify existing requirements
involving height, strength, or other criteria. In some circumstances on
low slope roofs for

which the existing standard requires guardrails (or equivalent
protection), the final standard allows employers to use designated
areas.
    Rather than explicitly requiring midrails in guardrail systems as
in the existing subpart D standards, the final subpart D standards use
performance-oriented criteria that allow midrails, screens, mesh,
intermediate members, solid panels, or equivalent intermediate
structural members. Compliance with the existing standards would
generally also meet the requirements of the final standards.
Furthermore, the final standard allows the employer to choose any of a
wide variety of currently used and readily available guardrail system
materials and designs to meet the performance-oriented criteria. Based
on these considerations, the final subpart D requirements for guardrail
systems are technologically feasible.
    Final Sec.  1910.29(c) references the construction standards to
specify criteria for safety net systems. The criteria for safety nets
established through this final rulemaking include requirements for drop
tests and inspections for each safety net installation. Other criteria
for safety nets established in final subpart D involve design and
strength standards. Employers can achieve all of these criteria by
using existing and commonly available safety net systems. The final
requirements for installing safety net systems reflect basic safety
considerations already adopted by manufacturers of equipment and by
employers. Readily available and currently used technology is capable
of meeting these requirements.
    The final standard introduces the option of designated areas (see
final Sec.  1910.29(d)) as a means of fall protection available to
employers, in addition to other acceptable fall protection measures in
certain circumstances on low slope roofs. The technology necessary to
implement this option consists of basic materials such as rope, wire,
or chain, and supporting stanchions. Employers can achieve the
strength, height, and visibility criteria specified in the final
standard for designated areas with currently available materials and
technology.
    Requirements for covers for holes in floors, roofs, and other
walking-working surfaces in the final standard (see final Sec.
1910.29(e)) simplify and consolidate the proposed requirements for
covers and now consist of two new provisions requiring that the cover:
(1) Is capable of supporting without failure, at least twice the
maximum intended load that may be imposed on the cover at any one time;
and (2) Is secured to prevent accidental displacement. The performance-
oriented criteria applicable to covers allow for the application of a
wide variety of technological solutions.
    Requirements in final subpart D for handrail and stair rail systems
(Sec.  1910.29(f)) specify criteria for height, strength, finger
clearance, and type of surface, among others. Employers currently meet
these criteria with existing technology, and a wide variety of
different materials and designs are available to comply with the
requirements.
    New requirements in final paragraph (g) of this section specify
that landing platforms, as well as all platforms used with fixed
ladders and cages and wells, provide a horizontal surface that meets
specified dimensions are feasible considering the availability of
appropriate materials and engineering expertise. Final Sec.  1910.29(g)
also sets criteria for ladder cages and wells, if used on fixed
ladders. OSHA notes that the Agency is phasing out the use of cages and
wells as a means of fall protection on fixed ladders. See full
discussion in summary and explanation of Sec.  1910.28(b)(9).
    Final paragraph (h) includes requirements for qualifying employees
to climb ladders on outdoor advertising that expire two years after
publication of the final standard (see Sec.  1910.28(b)(10)). After
this two-year period, employers in outdoor advertising must provide one
or more of the fall protection systems specified in Sec.  1910.28 for
employees who climb fixed ladders. Although new to subpart D, the
training and other administrative controls that characterize the
development and protection of those working without fall protection
have been around for many years. Furthermore, evidence in the record
indicates that some employers in outdoor advertising are now providing
conventional fall protection for ladders (Ex. 369). Therefore, OSHA
concludes that there will be few, if any, technological hurdles for
industry to implement the provisions for qualified climbers before and
after the two-year expiration date.
    Final paragraph (i) establishes criteria and practice requirements
for ladder safety systems permanently attached to fixed ladders or
immediately adjacent to such ladders. A ladder safety system is a
conventional fall protection system designed to eliminate or reduce the
possibility of falling from a fixed ladder (see definition of ``ladder
safety system'' in final Sec.  1910.21(b)). According to this
definition, it usually consists of the following:
     A carrier, which is a rigid or flexible track attached to
or adjacent to the fixed ladder;
     A safety sleeve, which is moving component that travels on
the carrier;
     A lanyard;
     Connectors; and
     A body harness.
    Although the existing rule at Sec.  1910.21(e)(13) addresses
``ladder safety devices,'' which serve the same purpose as ladder
safety systems, the existing rule does not specify criteria or practice
requirements for those devices. As a result, OSHA drew many of the
proposed ladder safety system criteria and practice requirements from
the construction ladder standard at Sec.  1926.1053(a)(22) and (23).
The construction standard allows the use of body harnesses or body
belts with ladder safety systems. OSHA also drew ladder safety system
criteria and practice from ANSI/ASC A14.3-2008. The Agency notes the
national consensus standard does not include the use of body belts with
ladder safety systems.
    As noted above, the ladder safety system criteria and practice
requirements in the final standard have been published in an OSHA
construction standard and in a national consensus standard, and
therefore any technological feasibility concerns for the range of
structures encountered in general industry would very likely have been
addressed in the proceedings that led to those publications. Therefore,
OSHA concludes that the final requirements for ladder safety systems
are technologically feasible.
    Final paragraph (j), like the proposed rule, requires that body
belts, body harnesses, and other components of personal fall arrest
systems, work-positioning systems, and travel restraint systems, meet
the applicable requirements in final Sec.  1910.140. Employers
currently meet these criteria with existing technology, and a wide
variety of different materials and designs are available to comply with
the requirements.
    Final Sec.  1910.29(k) clearly specifies criteria for systems that
provide falling-object protection. OSHA redrafted the provisions in the
existing standard addressing toeboards using specification language
found in the OSHA construction standard (Sec.  1926.502(j)(3)) and with
national consensus standards (ANSI/ASSE A10.18-2012 (Section 5.7), and
ANSI/ASSE A1264.1-2007 (Section 4.1.5) while other requirements for
guardrail systems and canopies specified in the design criteria are
within current engineering norms. Therefore, OSHA concludes that the

falling-object protection provisions are technologically feasible.
    Lastly, final paragraph (l) contains design and strength criteria
for grab handles. For the most part, these requirements are consistent
with the requirements for grab handles in existing subpart D and are,
therefore, technologically feasible.
Training Requirements (Sec.  1910.30)
    Section 1910.30 introduces requirements specifying that employees
receive training from a qualified person, and that the training, which
applies to personal fall protection equipment, prepare employees to
recognize fall hazards in the work area, in the procedures to follow to
minimize these hazards, and in the installation, inspection, operation,
maintenance, disassembly, and correct use of personal fall protection
equipment. Employers also must train workers in the proper care,
inspection, storage, and use of equipment subpart D covers before
workers use that equipment, such as dockboards, RDS, and designated
areas. Employers must retrain employees when changes occur in the
workplace or in the types of fall protection systems or equipment used
that renders the previous training obsolete or inadequate, or employees
exhibit an absence of understanding or skill needed to use the
equipment or perform the job safely; employers also must train
employees in a manner the employees understand. Because of extensive
evidence in the record that the training required under the final
standard has widespread acceptance throughout industry (Exs. 53; 73;
96; 127; 172; 189; 205; 216; 222; 226; 329 (1/18/2011), pgs. 82, 117,
186, 258; 329 (1/19/2011), pgs. 22, 24; 329 (1/20/2011), pgs. 182, 287;
329 (1/21/2011), pgs. 9, 92, 200, 206; 364), such training will not
present technological feasibility concerns.
2. Technological Feasibility for Final Subpart I (Personal Protective
Equipment)
General Requirements (Sec.  1910.132)
    Revised Sec.  1910.132(g) of subpart I in this final rulemaking
requires that employers conduct hazard assessments and training in
accordance with the requirements in Sec.  1910.132(d) and (f) in
workplaces when employers provide personal fall protection equipment to
employees. Survey data indicate that a significant percentage of
employers currently assess the occupational fall hazards encountered by
their employees, and that a similarly large percentage of employers
train their employees in the proper use of personal fall protection
equipment (OSHA, 1994). These hazard assessment and training
requirements, therefore, will not present technological feasibility
concerns.
Personal Fall Protection Systems (Sec.  1910.140)
    The final subpart D standards include provisions for personal fall
protection systems, including components such as harnesses, connectors,
lifelines, lanyards, anchorages, and travel restraint lines. Section
1910.140 of subpart I specifies the criteria that these components must
meet when employees use them.
    The revisions to the walking-working surfaces and fall protection
systems described in the final rule include revisions to several
subparts in 29 CFR part 1910 other than subparts D and I. For purposes
of this analysis, the determinations of technological feasibility
described in this FEA include the revisions of these other subparts.
    The requirements applicable to personal fall protection systems
specified by this final rulemaking codify basic safety criteria for
these systems. These criteria reflect common industry safety practices,
and currently and readily available equipment meets these criteria. The
final standards generally do not require changes in current technology
or practices for employers who use standard safety equipment and follow
standard safety procedures. The current and ready availability of
personal fall protection systems, including personal fall arrest
systems, positioning systems, and travel restraint systems, and the
application of these technologies in diverse industrial activities and
circumstances, demonstrate the technological feasibility of these
requirements in the final standard.
3. Summary of Technological Feasibility
    In conclusion, OSHA determined that compliance with the final
revisions to subparts D, I, and other affected subparts of 29 CFR part
1910 is technologically feasible. Thus, there is no technological
hindrance to the significant improvement of employee safety on walking
and working surfaces resulting from implementation of this final rule.

F. Costs of Compliance

1. Introduction
    This subsection presents OSHA's final analysis of the compliance
costs associated with the final standard for walking-working surfaces
and fall protection in general industry. Following discussion on the
public comments addressing OSHA's preliminary estimate of compliance
costs and OSHA's response to those comments, the cost analysis proceeds
into a discussion of the assumptions used in the analysis. OSHA based
its final analysis of compliance costs largely on the cost analysis
conducted by OSHA's contractor, Eastern Research Group (ERG, 2007), and
the Preliminary Economic Analysis. The presentation below focuses on
what constitutes the regulatory baseline (i.e., current conditions)
from which OSHA measured the costs, impacts, and benefits of the final
rule. The Agency also discusses the effect of consensus standards and
the compliance rates for the existing rule on the cost analysis (i.e.,
when codification of existing consensus standards results in little to
no incremental costs for the final rule).
    Following the discussion of baseline assumptions, the next
subsection reviews the final rule on a paragraph-by-paragraph basis for
those paragraphs that potentially could result in costs to industry.
The final subsection examines one-time costs to bring employers into
compliance with the rule, as well as the annual costs for training new
employees and retraining existing employees. OSHA presents the cost
estimates by affected industry, and by applicable provision. The final
subsection concludes with a discussion and tables that summarize the
costs for each section of the standard, and aggregates them to estimate
total costs.
2. Public Comments on the Preliminary Cost Analysis
    OSHA requested comment on the assumptions, unit costs, and
analytical methods applied in the preliminary cost analysis for
proposed subparts D and I. The discussion below summarizes the public
comments addressing OSHA's preliminary cost analysis and OSHA's
response to those comments.
    The Sheet Metal and Air Conditioning Contractors National
Association (SMACNA) was critical of OSHA's estimate of compliance
costs, stating:

    A review of the anticipated costs indicates that OSHA has under-
estimated the actual costs to employers to comply with the
requirements of these rules. SMACNA encourages OSHA to conduct
further outreach to employers to find the true costs associated with
the revisions to company operations, purchasing equipment and
conducting training that these proposed standards would require.
With over 5 million small businesses affected by these requirements
(OSHA's data), it is fair and prudent upon OSHA to outreach to these
companies by convening a Small Business Regulatory Enforcement
Fairness Act panel. (Ex.165, p. 5.)

    With respect to the convening of a Small Business Regulatory
Enforcement Fairness Act (SBREFA) panel, OSHA in the NPRM certified
that the proposed standard would not have a significant impact on a
substantial number of small firms, which satisfied the statutory
requirements at the time OSHA published the NPRM. Other stakeholders
who also requested that OSHA convene a SBREFA panel include the
National Federation of Independent Businesses (Ex. 173) and the U.S.
Chamber of Commerce (Ex. 202). With respect to SMACNA's assertion that
OSHA underestimated compliance costs, SMACNA did not provide any
further details to support its statement, and, therefore, OSHA has no
basis to evaluate the criticism.
    ORC HSE Networks, a division of Mercer LLC, expressed concerns
about the proposed requirement, found in Sec.  1910.29(b)(1), that the
top edge of guardrail systems be 42 inches (107 cm), plus or minus 3
inches (8 cm), above the walking-working surface. Mercer's comment
reads as follows:

    In a footnote on page 28894 of the May 24 notice of proposal,
OSHA stated that it decided not to include existing guardrails
having top edges as low as 36 inches from the working surface in any
of the ``grandfathering'' provisions of this rule despite such a
provision having been included in the previous proposals and
acknowledged as a ``de minimis'' violation of the existing standard
in various OSHA letters of interpretation. While OSHA states that it
does not consider 36 inches to be ``equally safe'' to the ``42
inches nominal'' requirement in the existing standard or the 42
inches plus or minus three inches in the proposed rules, OSHA
provided no rationale or support for this proposed decision.
    OSHA's economic and benefits analyses should estimate the number
of injuries that would be prevented if existing guardrails that have
heights between 36 and 39 inches must be replaced with those having
at least a 39-inch height. In addition, OSHA should determine the
costs that will be associated with replacing guardrails with top
edge heights between 36 and 39 inches and include them in the
regulatory and economic feasibility analyses for these rules.
Clearly, if people have been writing to OSHA to ask about guardrails
that are less than the ``42 inches nominal'' in the existing rule,
there are likely to be significant numbers of workplaces that have
these non-standard guardrails in place. OSHA should either quantify
the benefits and costs of this rule change or grandfather those
guardrail installations that occurred prior to the effective date of
the new rules. Only new or remodeled facilities should be required
to follow the new requirement for top edge height of guardrails.
(Ex. 170, p. 6.)

As noted in the NPRM (75 FR 28894), the proposed provision for the
height of guardrail systems was essentially the same as the existing
requirement in Sec.  1910.23(e)(1). Despite proposed grandfathering of
guardrails with heights as low as 36 inches (above the working surface)
under the two previous proposals (1973 and 1990), OSHA believes that in
the 40 or so years since it issued the existing standard, a large
percentage of the walking-working surfaces protected by guardrails are
in compliance with the 39-inch minimum-height standard. In the absence
of data in the record on the range of heights of guardrails throughout
industry, OSHA believes that the percentage of guardrail systems not
meeting the minimum height requirement is low. Therefore, if OSHA's
belief is correct, the additional cost burden and economic impacts for
employers not in compliance with the final height requirement would be
relatively insubstantial and, therefore, would not present economic
feasibility concerns.
    Corporate Cleaning Services, a leading window washing company in
Chicago, urged OSHA to consider the economic ramifications of limiting
the permitted distance when using rope descent systems (RDS) to 300
feet (Ex. 126). In written testimony, Corporate Cleaning Services
stated that the use of suspended scaffolds could add up to 30 percent
to the time required to complete a job compared with RDS. By
comparison, in a post-hearing comment, Valcourt Building Services
estimated that the cost increase would range from 10 to 20 percent if
it had to use a permanent scaffold installation as an alternative to
RDS (Ex. 358). In response to these comments, OSHA in this FEA
estimated the costs and economic impact of the 300-foot distance
limitation for RDS specified in the final rule. OSHA discusses the
revised cost estimate below under Sec.  1910.27, Scaffolds and rope
descent systems.
    Charles Lankford of Rios & Lankford Consulting International argued
that OSHA's requirement, under the paragraph for general conditions,
that walking-working surfaces be designed, constructed, and maintained
free of recognized hazards would impose legal responsibilities, and
hence, legal costs, on employers that OSHA neglected in the PEA. Mr.
Lankford stated:

    My review of the risk-benefit analysis in the proposed rule did
not find that OSHA considered the costs of defending from citations
being issued after the collapse of a surface the employer did not
have tested or evaluated by an engineer after a plant purchase, that
might have resulted in a fatality. It is reasonable to expect that
litigation costs arising from new regulations should be included in
an estimate of costs, when conducting a risk-benefit analysis.
    OSHA does not seem to have considered all the ramifications, or
having considered them, opted to leave them in a grey area so as to
more broadly enforce these provisions to the detriment of employers.
(Ex. 368.)

OSHA agrees with Mr. Lankford that the failure of employers to exercise
due diligence in ensuring the safety of workers on surfaces could
result in torts and other legal expenses. However, the probability of
legal liability will diminish to the extent that employers expend the
resources necessary to achieve compliance with more stringent fall
protections.

    In a comment to the record and testimony at the public hearing, the
National Chimney Sweep Guild (NCSG) expressed concerns about the costs
and economic feasibility of compliance with the proposed standard for
the businesses performing chimney-cleaning services and other related
work on residential roofs (Exs. 150; 296; 329 (1/18/2011), p. 342;
365). The following post-hearing comment summarizes the views voiced by
NCSG throughout the rulemaking:

    If adopted and enforced as proposed, the provisions of the
Proposed Rule that address the structural integrity and condition of
walking-working surfaces, the use of ladders, and the selection and
use of fall protection would: (1) substantially affect the manner in
which chimney sweeps perform their work; (2) expose sweeps (and/or
the roofing trade) to greater hazards than current industry
practices; (3) threaten the continuing economic viability of the
chimney sweeps industry; and (4) threaten the availability of
chimney inspection, sweeping and repair services at affordable
prices, which would be expected to result in less chimney
inspections/sweeping/repairs and a significant increase in
residential fires and/or an increase in falls by homeowners or other
self-employed individuals who would perform these tasks. (Ex. 365,
pp. 2-3.)

Below under the heading ``Cost estimates'' and in section H, Regulatory
Flexibility Screening Analysis, OSHA addresses NCSG's concerns.
3. Cost Assumptions
a. Baseline for Estimating Costs
    The Office of Management and Budget's guidance on regulatory
analysis (OMB, 2003) discusses how to develop a baseline against which
to measure the costs and benefits of a rule. The baseline should be the
best assessment of conditions absent the proposed standard, and is
frequently assumed to resemble the present practice broadly observed
among affected employers (although the more technically correct
approach from a benefit cost analysis viewpoint, where feasible, is to
project the hypothetical future state of the world in the absence

of the rule). The baseline for this final cost analysis, then, includes
rates of compliance with existing subparts D and I, as well as with
applicable national consensus standards. For a discussion on the
theoretical underpinnings for the use of consensus standards as a
baseline in OSHA's cost analysis, see ERG, 2007.
    OSHA analyzed Agency inspections for fiscal year 2005 that resulted