of 10 years and operating and maintenance costs of 10 to 30 percent
have been used as reasonable estimates.
Cost of Specific Controls
Dust Booths
    In the PEA, OSHA estimated that there would need to be one dust
booth for each sand moving machine, and that this would result in one
dust booth for small fleets, three for medium fleets, and five for
large fleets. In critiquing OSHA's cost analysis for hydraulic
fracturing, API/IPAA disagreed with OSHA's estimates that only sand
mover operators would need to utilize dust control booths in order to
achieve the new PEL (Document ID 2301, p. 69). API/IPAA suggested that
instead there would need to be one booth per affected worker and that
only one worker could utilize a given booth. In the Associations'
estimate this would mean that there would need to be 3, 8 and 12 booths
for small, medium, and large fleets, respectively (Document ID 2301,
Attachment 4, Dust Booths, row 9).
    As discussed in the technological feasibility chapter of the FEA,
OSHA agrees that workers other than sand mover operators will need to
use dust booths. However, OSHA does not agree that a booth can only
accommodate a single person. These booths are places of refuge and are
not assigned to specific individuals. The technological feasibility
chapter in the FEA determined that dust booths can accommodate more
than one person per booth. Because OSHA agrees that more employees than
sand mover operators will need booths, OSHA has raised its estimates of
booths needed by size class from 1, 4, and 5 booths to 3, 6, and 8
booths. While this estimate of the number of booths is lower than that
recommended by API/IPAA, OSHA finds that these booths can accommodate 2
persons per booth and thus can accommodate more workers than API/IPAA
suggested.
    In the PEA, OSHA estimated the transportation costs for booths as
$37.25 per booth. API/IPAA disagreed. The Associations argued that a
cost of $513 for a small fleet, which would only have one booth, would
be more appropriate (Document ID 2301, p. 69). Most of the difference
between API/IPAA's cost estimate for deploying dust control booths and
OSHA's estimate is attributable to the fact that the Associations
presented their cost per fleet and OSHA presented its cost per

booth. API/IPAA applied their estimate of the number of booths
necessary at these worksites when deriving their estimate and they
estimated about six times as many booths being necessary as OSHA did.
However, after further examination of this cost, OSHA determined that
the standard per-mile shipping rate that it used to estimate
transportation costs in the PEA was applied incorrectly. This resulted
in an estimate of transportation costs for booths in the PEA that was
too low. OSHA has determined that the cost to transport dust booths
presented by the Associations more completely captured the costs
associated with transporting these booths. For the FEA, OSHA has
accepted the Associations' per-fleet transportation cost of $513 for
each booth and applied the cost to the Agency's estimate of the number
of booths necessary to control silica exposures on well sites.
Water Misting
    In the PEA, OSHA estimated that water misting system would be
needed to control residual emissions from some releases from sand
moving systems. These water misting systems were estimated to cost
$60,000 per fleet to purchase and an additional 20 percent of the
purchase cost for installation. API/IPAA incorrectly assumed that these
water misting systems were intended to control all dust emission from
truck traffic and other sources (Document ID 2301, pp. 69-70). This was
not the case--dust suppression for truck and other traffic was costed
at a much higher rate separately from water misting.
    OSHA's cost estimates for misting systems were based on
conversations with a mining dust control specialist who indicated the
price and efficacy of available water misting systems (Document ID
1571). While API/IPAA disagreed with OSHA's costs, they did not offer
any data to show an alternative cost, instead simply carrying OSHA's
estimate for water misting systems forward in their analysis to arrive
at their cost estimate (Document ID 2301, Attachment 3, Water Misting,
cells K:O6 and J8). OSHA has determined that the equipment that formed
the basis for its cost estimates in the PEA may not be durable enough
to stand up to the wear from frequent loading, unloading, and
transportation. Therefore, the Agency, based on its own judgement, has
increased the estimated cost of a water misting system by 33 percent in
order to account for the need for a more durable system. Based on this,
OSHA's final cost analysis for hydraulic fracturing includes costs of
$79,800 per fleet to purchase the equipment plus installation costs of
$15,960 for installation (20 percent of the purchase price) for water
misting equipment to control residual dust emissions from sand moving
systems.
Costs of Transportation
    In developing the costs for hydraulic fracturing firms to comply
with this rule in the PEA, it was determined that the baghouse controls
that are commercially available are integrated into sandmover units and
therefore should not present any logistical difficulties for
transportation purposes. However, in examining the costs to transport,
assemble, and disassemble the control equipment, API/IPAA noted
potential difficulties in adding baghouse controls to sandmovers, which
are often nearly at weight limits for road movement (Document ID 2301,
p. 71).
    OSHA's determination about integrated units has not changed since
the PEA. The existence of integrated units is further discussed in
Chapter IV of the FEA, Technological Feasibility. OSHA notes that
sandmover units are not the heaviest items transported by hydraulic
fracturing firms, so the additional weight associated with baghouse
controls would be insignificant in this context. These firms are highly
experienced in moving the heavy, bulky equipment needed on well sites
and including additional controls on this equipment is not expected to
create a situation that exceeds the capabilities of these firms.
Containerized Systems
    Commenting on OSHA's analysis of the cost of controls for hydraulic
fracturing, API/IPAA expressed concern that OSHA was considering
requiring the use of containerized systems. The Associations stated
that these systems would be economically infeasible for small fleets
and raised questions about whether these systems would be sufficient to
allow fleets using them to achieve the PEL (Document ID 4222, p. 7).
Neither in the PEA nor the FEA has OSHA's cost analysis reflected the
use of containerized systems, nor does OSHA require their use. Instead,
containerized systems represent a possible technological change that
could potentially reduce the costs of silica control. OSHA has in no
way quantitatively tried to estimate the effects of this possible
reduction.
Conveyor Skirting
    In the PEA, OSHA found that conveyor skirting systems with
appropriate LEV would be needed to meet the new PEL, and included the
cost of such controls in the incremental costs associated with the new
PEL. As discussed in Chapter IV, Technological Feasibility, in the FEA,
however, OSHA now finds that these conveyor skirting systems will be
needed to meet the preceding PEL, but not to further lower exposures to
the new PEL, so OSHA is not including costs for these controls as
incremental costs associated with achieving the new PEL. As a result,
the FEA does not include costs for conveyor skirting systems and LEV.
Dust Suppression--Control of Dust Generated From Traffic
    On the other hand, dust suppression to control silica emissions
generated by truck traffic, estimated in the PEA as necessary only to
meet the preceding PEL, has now been determined to be necessary to meet
the new PEL (see Chapter IV, Technological Feasibility in the FEA). As
a result, in the FEA OSHA added the costs of dust suppression to
control silica dust generated by truck traffic to the estimated
incremental costs of meeting the new PEL. OSHA estimates that dust
suppression is more expensive in the aggregate than conveyor skirting
systems with appropriate LEV.
    OSHA made two additional changes to the costs of dust suppression
from the PEA to the FEA. First, OSHA accepted the unit costs for dust
suppression application provided by API/IPAA (Document ID 2301,
Attachment 3, Dust Suppression). This unit cost is somewhat lower than
the original estimate that OSHA adopted in the PEA (Document ID 1712).
This seems reasonable to OSHA based on the costs of the most commonly
used dust suppression materials. Second, OSHA has determined that these
controls will be utilized to reduce exposures for ancillary support
workers and remote/intermittent workers, 50 percent of whom work in
situations that currently have exposures below the new PEL (as shown in
the exposure profile in the section on hydraulic fracturing in Chapter
IV, of the FEA, technological feasibility). As a result, instead of
assigning dust suppression costs for all wells (as in the PEA), OSHA
determined in the FEA that dust suppression costs would be incurred by
50 percent of wells. This aligns with a view that, in many cases,
natural conditions (silica content of soils, dustiness, wetness and/or
climate) are such that dust suppression is not needed.

Small Business Considerations
Small Business Regulatory Enforcement Fairness Act (SBREFA) Comments on
Compliance
Costs in General Industry and Maritime
    Before publishing the NPRM, OSHA received comment on the accuracy
of its unit costs through the Small Business Advocacy Review (SBAR)
Panel process.
    The Small Entity Representatives (SERs) who participated in the
2003 SBAR Panel process on OSHA's draft standards for silica provided
many comments on the estimated compliance costs OSHA presented in the
Preliminary Initial Regulatory Flexibility Analysis (PIRFA) for general
industry and maritime (Document ID 0938).
    In response to the SERs' comments, OSHA carefully reviewed its cost
estimates and evaluated the alternative estimates and methodologies
suggested by the SERs. OSHA updated all unit costs presented in the
PIRFA to reflect the most recent cost data available and inflated all
costs to 2009 dollars prior to publication of the proposed rule.
However, the Agency generally determined that the control cost
estimates in the PIRFA were based on sound methods and reliable data
sources.
    For the PEA, OSHA reviewed the SERs' cost estimates for small
entities in the foundry and structural clay industries. Given that
those SERs did not report their own sizes, the Agency could not compare
their estimates to the estimates in the PEA. OSHA concluded that the
compliance costs reported by the SERs in general industry that did
provide size data were not incompatible with OSHA's own estimates of
the costs of engineering controls to comply with the PEL. As discussed
above, for the FEA, OSHA has halved the number of workers assumed to be
covered by each control for most controls in establishments with fewer
than twenty employees, which results in a doubling of the engineering
control costs for these establishments.
Comments and Responses on Costs for Small Establishments
    Stuart Sessions, testifying on behalf of ACC, argued that OSHA had
underestimated costs to small establishments for two reasons: (1) Small
establishments may have higher exposures and therefore many need to
spend more money installing controls to reduce those exposures; and (2)
costs to small establishments may involve diseconomies of scale--
whereby smaller facilities would have to pay more per unit to procure
and install systems--that OSHA had not accounted for (Document ID 4231,
Attachment 1, pp. 2-4).
    With respect to the issue about small establishments having higher
exposures--the commenter simply asserted that this is the case without
providing any evidence to support the claim. Mr. Sessions speculated
that smaller businesses have a ``lesser ability to afford compliance
expenditures and lesser ability to devote management attention to
compliance responsibilities'' (Document ID 4231, Attachment 1, p. 2).
While it is possible that very small establishments may not have the
same controls already in place as large establishments, as asserted by
the commenter, this does not necessarily mean that very small
establishments will have higher exposures. Small and very small
establishments typically only have one shift per day, so fewer shifts
are being worked where there is a potential for exposure. They also may
spend more time on activities not involving silica exposures. For
example, a small art foundry that produces one or two castings a week
will simply spend proportionally less time on activities that lead to
silica exposure than a large production foundry.
    With respect to the issue of diseconomies of scale, OSHA has taken
this phenomenon into account in its cost estimates in the FEA. First,
in order to provide a conservative estimate of costs for the purposes
of determining the impacts on very small employers, OSHA has revised
what Mr. Sessions called ``the most inappropriate of OSHA's
assumptions'' (Document ID 4231, Attachment 1, p. 6). In the PEA, OSHA
estimated that a single control would reduce the exposures of four
workers. For the FEA, OSHA has revised its estimates so that the number
of workers whose exposures are reduced by a control are half that used
in the PEA for establishments with fewer than 20 employees--reducing
the number of workers covered by a control from four to two. OSHA made
this adjustment even though there are ways in which small
establishments may have lower costs per cfm than larger establishments.
For capital costs, a major element of cost per cfm is the length of
ductwork. Within the same industry, the length of ductwork will be much
shorter in smaller establishments. For operating costs per cfm, length
of operating time is a key element of costs.
    OSHA has continued to estimate that the exposures of four employees
whose exposures would be reduced per control for establishments with
more than twenty employees (even though it is likely that more than
four workers have their exposures reduced per control in the largest
establishments). This effectively means that very large establishments
with hundreds of employees have been modeled as if their costs were
equivalent to that of several 20-40 person establishments combined. Far
from neglecting diseconomies of scale, in an effort to be conservative
and adequately account for the challenges faced by smaller
establishments, OSHA has instead neglected to account for economies of
scale in larger establishments.
    Mr. Sessions calculated some higher overall costs for smaller
establishments (Document ID 4231, Attachment 1, pp. 6-10). However,
these costs are critically dependent on the assumptions already
addressed and rejected by OSHA, such as that exposures are random and
that any exposures require that all possible controls be installed to
control those exposures.
Final Control Costs
Unit Control Costs
Methodology
    For the FEA, OSHA used unit costs developed in the PEA for specific
respirable crystalline silica control measures from product and
technical literature, equipment vendors, industrial engineers,
industrial hygienists, and other sources, as relevant to each item.
Some PEA estimates were modified for the FEA based on comments in the
record, and all costs were updated to 2012 dollars. Specific sources
for each estimate are presented with the cost estimates. Wherever
possible, objective cost estimates from recognized technical sources
were used. Table V-4 in the FEA provides details on control
specifications and data sources underlying OSHA's unit cost estimates.
Summary of Control Costs for General Industry and Maritime
    Table V-5 in the FEA summarizes the estimated number of at-risk
workers and the annualized silica control costs for each application
group. Control costs in general industry and maritime for firms to
achieve the PEL of 50 [mu]g/m\3\ level are expected to total $238.1
million annually. As shown, application group-level costs exceed $15.0
million annually for concrete products, hydraulic fracturing, iron
foundries, railroads, and structural clay.
    Table V-6 in the FEA shows aggregate annual control costs in
general industry and maritime by NAICS industry. These costs reflect
the disaggregation of

application group costs among the industries that comprise each group
(see Table III-1 in Chapter III of the FEA on the profile of affected
industries.)
b. Control Costs in Construction
    In both the PEA and the FEA, OSHA determined that employers, in
order to minimize exposure monitoring costs, would select appropriate
controls from Table 1. The final estimate for control costs, however,
includes Table 1 control costs for a larger number of employees than in
the PEA. For the purpose of estimating control costs in the PEA, OSHA
examined all of the employers with employees engaged in Table 1 tasks
but judged that only a subset of those employers (those with workers
exposed above the proposed silica PEL) would require additional
engineering controls. For this final rule, OSHA has judged, for costing
purposes, that all of the construction employers with employees
performing any task covered in Table 1 will adopt the engineering
controls for that task as specified in Table 1. Thus, in the FEA, OSHA
took the more conservative approach--which may result in an
overestimate of costs--of identifying the cost of controls for all
employers with employees engaged in Table 1 tasks, not just the subset
of employers with employees exposed above the PEL. However, as
discussed in Chapter III of the FEA, OSHA did adjust control costs to
reflect the 44 percent of workers in construction currently exposed at
or below the PEL who are estimated to be in baseline compliance with
the Table 1 requirements.
    OSHA is also likely overestimating the cost of controls for another
reason. If the employer is able to demonstrate by objective data, or
other appropriate means, that worker exposures would be below the
action level under any foreseeable conditions, the employer would be
excluded from the scope of the final rule. These employers would not
require additional controls. OSHA did not have sufficient data to
identify this group of employers and did not try to reduce the costs to
reflect this group, so OSHA's estimate of costs is therefore
overestimated by an amount equal to the costs for those employers
engaged in covered construction tasks but excluded from the scope of
the rule.
    A few tasks involving potentially hazardous levels of silica
exposure are not covered in Table 1. Employers would have to engage in
exposure monitoring for these tasks pursuant to paragraph (d) and use
whatever feasible controls are necessary to meet the PEL specified in
paragraph (d)(1). For example, tunnel boring and abrasive blasting are
not covered by Table 1 and are therefore addressed separately in this
cost analysis. Although several commenters identified various other
activities that they believed were not covered by Table 1 that could
result in crystalline silica exposure over the PEL (Document ID 2319,
pp. 19-21; 2296, pp. 8-9), some of these activities were simply
detailed particularized descriptions of included activities. For
example, overhead drilling is addressed in the FEA, Chapter IV-5.4 Hole
Drillers Using Handheld or Stand-Mounted Drills, and the demolition of
concrete and masonry structures is addressed in the FEA, Chapter IV-5.3
Heavy Equipment Operators. For the remainder, the available exposure
data did not indicate that these activities resulted in a serious risk
of exposure to respirable crystalline silica (see FEA, Chapter III
Industry Profile, Construction, Public Comments on the Preliminary
Profile of Construction and Summary and Explanation, Scope and
Application); furthermore, these other activities could be addressed
using the controls identified in the FEA. Because OSHA did not have
sufficient data to identify a significant number of silica exposures
above the PEL of 50 [mu]g/m\3\ for these activities, the Agency did not
include costs for controlling silica exposures during these activities.
Nevertheless, to the extent that employers find it necessary to
implement controls for any activity that OSHA did not explicitly
include in this analysis, the FEA shows that those controls are clearly
economically feasible.
    The control costs for the construction standard are therefore based
almost entirely on the tasks and controls specified in Table 1. Most of
the remainder of this section is devoted to explaining the manner in
which OSHA estimated the costs of applying appropriate engineering
controls to construction activities as required by Table 1 of the final
standard. These costs are generated by the application of known dust-
reducing technology, such as the application of wet methods or
ventilation systems, as detailed in the technological feasibility
analysis in Chapter IV of the FEA. These costs are discussed first,
and, following that, the control costs for tasks not specified in Table
1 are separately estimated.
    OSHA revised Table 1 between the PEA and the FEA. The entries
included in the table have been modified with some tasks being added
and some being removed.\35 \In addition, the methods of controlling
exposures that Table 1 requires for certain tasks have changed in
response to comments and additional analysis. Excluding changes to
respirator requirements, which are addressed elsewhere in this
preamble, significant and substantive revisions to Table 1 that have
the potential to impact control costs include:
---------------------------------------------------------------------------

    \35\ Additionally, the nomenclature changed from ``Operation''
in the NPRM to ``Equipment/Task'' in the final rule.
---------------------------------------------------------------------------

     New entries on Table 1--
    [cir] Handheld power saws for cutting fiber-cement board (with
blade diameter of 8 inches or less)
    [cir] Rig-mounted core saws and drills
    [cir] Dowel drilling rigs for concrete
    [cir] Small drivable milling machines (less than half-lane)
    [cir] Large drivable milling machines (half-lane and larger for
cuts of any depth on asphalt only and for cuts of four inches in depth
or less on any other substrate)
    [cir] Heavy equipment and utility vehicles used to abrade or
fracture silica-containing materials (e.g., hoe-ramming, rock ripping)
or used during demolition activities involving silica-containing
materials.
    [cir] Heavy equipment and utility vehicles for tasks such as
grading and excavating but not including: Demolishing, abrading, or
fracturing silica-containing materials
     Removed entry for drywall finishing from Table 1
     Revised entries on Table 1--
    [cir] Drivable saw entry revised to permit outdoor use only.
    [cir] Portable walk-behind or drivable masonry saws divided into
two entries--walk-behind saws and drivable saws.
    [cir] Handheld drills entry revised to include stand-mounted drills
and overhead drilling.
    [cir] Combined entries for vehicle-mounted drilling rigs for rock
and vehicle-mounted drilling rigs for concrete.
    [cir] Milling divided into three tasks--walk-behind milling
machines and floor grinders; small drivable milling machines (less than
half-lane); and large drivable milling machines (half-lane and larger
with cuts of any depth on asphalt only and for cuts of four inches in
depth or less on any other substrate).
    [cir] Heavy equipment used during earthmoving divided into two
tasks--(1) heavy equipment and utility vehicles used to abrade or
fracture silica-containing materials (e.g., hoe-ramming, rock ripping)
or used during demolition activities involving silica-containing
materials, and (2) use of heavy equipment and utility vehicles for
tasks such as grading and excavating but not including: Demolishing,
abrading, or fracturing silica-containing materials.

    [cir] Revised crushing machines entry to require equipment designed
to deliver water spray or mist for dust suppression and a ventilated
booth or remote control station.
    In addition to the new and revised tasks in Table 1, some of the
controls and specifications required by Table 1 were revised for this
final rule, including removal of ``Notes/Additional Specifications''
from individual Table 1 entries and addition of substantive paragraphs
after the table. Those revisions include:
     Revised or newly required controls/specifications for
Table 1 tasks--
    [cir] Revised requirement to operate and maintain tools/machine/
equipment in accordance with manufacturer's instructions to minimize
dust emissions.
    [cir] Revised specifications for dust collectors to require they
provide at least 25 cubic feet per minute (cfm) of air flow per inch of
blade/wheel diameter (for some, but not all entries that include a dust
collection system as a control method).
    [cir] Revised specification for dust collectors to require they
provide the air flow recommended by the tool manufacturer, or greater,
and have a filter with 99 percent or greater efficiency and a filter-
cleaning mechanism (for some, but not all entries that include a dust
collection system as a control method). The entries for handheld
grinders for mortar removal (i.e., tuckpointing) and handheld grinders
for uses other than mortar removal require a cyclonic pre-separator or
filter-cleaning mechanism.
    [cir] Revised requirement for tasks indoors or in enclosed areas to
provide a means of exhaust as needed to minimize the accumulation of
visible airborne dust (paragraph (c)(2)(i)).
    [cir] Added requirement for wet methods to apply water at flow
rates sufficient to minimize release of visible dust (paragraph
(c)(2)(ii)).
    [cir] Revised specifications for enclosed cabs to require that
cabs: (1) Are maintained as free as practicable from settled dust; (2)
have door seals and closing mechanisms that work properly; (3) have
gaskets and seals that are in good condition and working properly; (4)
are under positive pressure maintained through continuous delivery of
fresh air; (4) have intake air that is filtered through a filter that
is 95% efficient in the 0.3-10.0 [mu]m range (e.g., MERV-16 or better);
and (5) have heating and cooling capabilities (paragraph (c)(2)(iii)).
    [cir] Added requirement to operate handheld grinders outdoors only
for uses other than mortar removal, unless certain additional controls
are implemented.
    [cir] Added wet methods option for use of heavy equipment and
utility vehicles for tasks such as grading and excavating but not
including: Demolishing, abrading, or fracturing silica-containing
materials.
    [cir] Added requirement to use wet methods when employees outside
of the cab are engaged in tasks with heavy equipment used to abrade or
fracture silica-containing materials (e.g., hoe-ramming, rock ripping)
or used during demolition activities involving silica-containing
materials.
     Removed controls/specifications for Table 1 tasks--
    [cir] Removed requirements to change water frequently to avoid silt
build-up in water.
    [cir] Removed requirements to prevent wet slurry from accumulating
and drying.
    [cir] Removed requirements to operate equipment such that no
visible dust is emitted from the process.
    [cir] Removed local exhaust dust collection system option and
requirement to ensure that saw blade is not excessively worn from the
entry for handheld power saws.
    [cir] Removed requirement to eliminate blowing or dry sweeping
drilling debris from working surface from the entry for handheld and
stand-mounted drills (including impact and rotary hammer drills).
    [cir] Removed additional specifications for dust collection systems
for vehicle-mounted drilling rigs for concrete (e.g., use smooth ducts
and maintain duct transport velocity at 4,000 feet per minute; provide
duct clean-out points; install pressure gauges across dust collection
filters; activate LEV before drilling begins and deactivate after drill
bit stops rotating).
    [cir] Removed requirements to operate grinder for tuckpointing
flush against the working surface and to perform the work against the
natural rotation of the blade.
    [cir] Removed dust collection system option and requirement to use
an enclosed cab from crushing machines.
    These and other changes to Table 1 are discussed in detail in
Section XV: Summary and Explanation of this preamble. While Table 1 has
changed with regard to the tasks included and the control methods
required, OSHA's methodology used to estimate the costs of controls for
the construction industry has remained basically the same as that
explained in detail in the PEA, with steps added (and explained in the
following discussion) to address cost issues raised during the comment
period and the updates and revisions to Table 1. OSHA summarizes the
methodology in the following discussion, but the PEA includes
additional details about the methodology not repeated in the FEA.
    OSHA adopted the control cost methodology developed by ERG (2007a,
Document ID 1709) for the PEA and subsequently for the FEA. In order to
provide some guidance on that cost methodology, OSHA itemizes below the
three major steps, with sub-tasks, used to estimate control costs in
construction, with two additional steps added for the FEA to estimate
the number of affected workers by industry and equipment category \36\
(numbered Step 3) and to estimate control costs for self-employed
persons (numbered Step 5)--tables referenced below are in Chapter V of
the FEA:
---------------------------------------------------------------------------

    \36\ The term ``equipment category'' as used here matches the
broad headings used in the Technological Feasibility analysis. Later
on in this section, OSHA identifies which Table 1 tasks are included
in each equipment category.
---------------------------------------------------------------------------

     Step 1: Baseline daily costs, relative costs of controls,
and labor share of value
    [cir] Use RSMeans (2008, Document ID 1331) estimates to estimate
the baseline daily cost for every representative job associated with
each silica equipment category (Table V-30) and unit labor and
equipment costs (Table V-31).
    [cir] Use vendors' equipment prices and RSMeans estimates to
estimate the unit cost of silica controls (Table V-32), and estimate
the productivity impact for every silica control and representative
job, to be added to the cost of the control applied to a particular job
(Table V-33).\37\
---------------------------------------------------------------------------

    \37\ This latter sub-step was performed in the PEA, but it was
inadvertently omitted in the text summary.
---------------------------------------------------------------------------

    [cir] Use the costs from Tables V-32 and V-33 to calculate the
incremental productivity impact, labor cost, and equipment cost for
each representative job when controls are in place (Table V-34).
    [cir] Using Tables V-30 and V-34, calculate the percentage
incremental cost of implementing silica controls for each
representative job (Table V-35).
    [cir] Calculate the weighted average incremental cost (in
percentage terms) and labor share of total costs for each silica job
category (outdoors and indoors estimated separately) using the assumed
distribution of associated representative jobs (Tables V-36a and V-
36b).
     Step 2: Total value of activities performed in all Table 1
silica equipment categories
    [cir] Match BLS Occupational Employment Statistics OES

occupational classifications for key and secondary workers with the
labor requirements for each equipment category (Table V-37) and
estimate the full-time-equivalent (FTE) number of employees by key and
secondary occupations working on each silica task (Tables V-38a and V-
38b).
    [cir] Based on the distribution of occupational employment by
industry from OES, distribute the full-time-equivalent employment
totals for each equipment category by NAICS construction industry
(Table V-39).
     Step 3: Total affected employment by industry and
equipment category
    [cir] Disaggregate construction industries into four distinct
subsectors based on commonality of construction work (Table V-40a) and
then estimate the percentage of affected workers by occupation,
equipment category, and construction subsector (Table V-40b).
    [cir] Use the percentage of affected workers by occupation,
equipment category, and construction subsector (Table V-40b) to obtain
total affected employment by occupation (Table V-41) and total affected
employment by industry and task (Table V-42).
     Step 4: Aggregate silica control costs (not including
self-employed persons)
    [cir] Using the FTE employment totals for each task by NAICS
construction industry (Table V-39) and the mean hourly wage data from
OES, adjusted for fringe benefits, calculate the annual labor value of
each Table 1 silica activity by NAICS construction industry (Table V-
43).
    [cir] Using the labor share of value calculated for each activity
performed in a silica-related equipment category (Table V-43), estimate
the total value of each Table 1 equipment/task category by industry
(Table V-44).
    [cir] Estimate the distribution of silica work by equipment type,
duration of activity, and location of activity (Table V-45).
    [cir] Multiply the total value of Table 1 construction activities
requiring controls (Table V-44) by the percentage incremental cost
associated with the controls required for each activity that uses
equipment in each equipment category (Tables V-36a and V-36b) and
weighted by the percentage of tasks performed outdoors and indoors/
within an enclosed space (Table V-45), to calculate the total control
costs, adjusted for baseline compliance, by Table 1 equipment category
and industry (Table V-46).
    [cir] Calculate engineering control costs for silica-generating
construction activities not covered in Table 1 (Tables V-47a and V-
47b).
    [cir] Combine the control costs for Table 1 construction activities
(Table V-46) and the control costs for construction activities not
covered in Table 1 (Tables V-47a and V-47b) to calculate the total
control costs by equipment category and construction industry (Table V-
48).
     Step 5: Adjust aggregate silica control costs to include
self-employed persons
    [cir] Use data from the BLS Current Population Survey to estimate
the ratio of the number of self-employed persons to the number of
employees by occupation (Table V-49) and then redo the estimation after
restricting self-employed persons to just those occupations covered by
OSHA that potentially involve exposure to hazardous levels of
respirable crystalline silica (Table V-50).
    [cir] Multiply the FTE rate for each occupation (from Tables V-38a
and V-38b) by the number of self-employed workers and employees in that
occupation (from Table V-50) to obtain the ratio of FTE self-employed
persons to FTE employees and then reduce that ratio to reflect only
self-employed persons working on a multi-employer worksite where the
work of the self-employed person cannot be isolated in time or space
(Table V-51).
    [cir] Increase the earlier estimate of control costs by equipment
category and industry (Table V-48) by the adjusted FTE ratio of self-
employed workers (Table V-40) to calculate total control costs by
equipment category and industry with self-employed persons included
(Table V-52).
Baseline Costs of Representative Jobs
Baseline Job Safety Practices
    OSHA's cost estimates address the extent to which current
construction practices incorporate silica dust control measures. Thus,
OSHA's baseline reflects such safety measures as are currently
employed. To the limited extent that silica dust control measures are
already being employed, OSHA has reduced the estimates of the
incremental costs of silica control measures to comply with the new
PEL. As discussed in Chapter III of the FEA and summarized in Tables
III-A-1 and III-A-2, OSHA estimates that 44 percent of workers with
exposures currently below the new PEL are using the controls required
in Table 1.
Representative Jobs
    Unlike the situation with the general industry/maritime standard,
OSHA does not have extensive data identifying the number of employees
engaged in Table 1 tasks or the duration of their exposure to
respirable crystalline silica during those tasks. Therefore, ERG
developed a model based on ``representative jobs'' for the purposes of
identifying the control costs necessary to comply with Table 1. Using
RSMeans Heavy Construction Cost Data (RSMeans, 2008, Document ID 1331),
which is a data source frequently used in the construction industry to
develop construction bids, ERG (2007a, Document ID 1709) defined
representative jobs for each silica-generating activity described in
the feasibility analysis. These activities and jobs are directly
related to the silica-related construction activities described in the
technological feasibility chapter of the FEA. ERG (2007a, Document ID
1709) specified each job in terms of the type of work being performed
(e.g., concrete demolition), the makeup of the crew necessary to do the
work, and the requisite equipment. For example, for the impact drilling
activity, ERG defined three representative jobs for various types of
demolition work. For each job, ERG derived crew composition and
equipment requirement data from the RSMeans (2008,Document ID 1331)
guide and then calculated the per-day baseline cost from the labor
rates, equipment charges, material costs, and overhead and profit
markups presented in the cost estimating guide.
    Table V-30 of the FEA shows the specifications for each
representative job and the associated daily labor, equipment, and
material costs. Table V-31 of the FEA provides a summary of the labor
rates and equipment charges used to estimate the daily cost of each
representative construction job in Table V-30 of the FEA. Note that the
data on hourly wages with overhead and profit in Table V-31 of the FEA,
obtained from RSMeans (2008, Document ID 1331), are employed here to be
consistent with other RSMeans cost parameters to estimate the baseline
costs of representative jobs. The RSMeans estimates are published for
the purpose of helping contractors formulate job bids, so ERG relied on
that data as an indicator of the amount of labor and time that would be
required for each of the representative jobs in the cost model
developed for this analysis. These RSMeans estimates are later used
only to determine two ratios: The labor share of the costs of
representative construction jobs and the percentage increase in the
cost of each representative job due to the addition of controls to
comply with the final rule. Everywhere else in the cost chapter, when
the actual wages were important to the calculations and are expressed
as

fixed amounts and not just ratios, OSHA used 2012 BLS wage data, which
include fringe benefits but not overhead and profit.
SBREFA Panel Comments on Cost Methodology for Construction
    Prior to the publication of the PEA, one SBREFA commenter
criticized the methodology for estimating engineering control costs on
the grounds that while RSMeans estimates were used to establish the
marginal costs of new controls (as a percentage of baseline costs),
average wage rates (including fringe benefits) from the BLS
Occupational Employment Statistics Survey, 2000, were used to calculate
the value of at-risk tasks without providing a justification for not
using RSMeans wage data (Document ID 0968, p. 13). Since BLS wage rates
are significantly lower than the RSMeans rates used by ERG in earlier
parts of the analysis, the commenter argued that this would
significantly lower the base to which the marginal cost factors are
applied to estimate compliance costs (Id.). This SBREFA commenter
further argued that the RSMeans estimates are likely to be on the high
end of estimated wages because they only cover unionized labor and are
therefore likely to lead to high estimates of impacts. The commenter
then recommended that more appropriate indexed labor wage costs be
computed and used consistently throughout the analysis (Document ID
0968, p. 14).
    First, the commenter's concern is misplaced because the choice of
the RSMeans estimates source does not skew the results in the manner
suggested by the commenter; nor does it even have a significant impact
on the cost analysis. The RSMeans estimates were used only to develop
the ratio of costs for the representative jobs to the total labor cost
and then to determine the incremental compliance costs as a percentage
of the total and the share (percentage) of estimate value with controls
accounted for by labor. Because the RSMeans estimates are organized by
project cost to assist contractors in bid planning, that data set is
the logical choice for this purpose over BLS data, which provides wage
data but does not provide comparable costs for projects. Dividing
project labor value by the labor share of project value yields an
estimate of total project value.
    The absolute level of the RSMeans wage and equipment cost levels do
not directly affect the resultant aggregate compliance costs. While
lower wage rates would lower the baseline costs of the representative
jobs, it does not follow that control costs as a percent of baseline
costs would also be lower. In fact, if lower wage rates are combined
with the same equipment costs, the equipment part of incremental
control costs would be a higher percentage of total baseline costs.
Only the labor share (percentage) of baseline costs, along with the
incremental compliance costs as a percent of baseline costs, are taken
from the analysis of representative costs and used in the subsequent
estimation of aggregate costs. The absolute levels of the wage rates
and equipment costs taken from RSMeans do not directly enter the
aggregate cost analysis.
    Second, OSHA notes that the BLS wage data, on which the aggregate
compliance costs are based, are obtained from a statistically valid,
national survey of employment and compensation levels and are the best
available data characterizing national averages of wages by detailed
occupation. For some of the reasons the commenter noted, OSHA believes
that the BLS wage estimate provides a more accurate reflection of
average wages.
    Another set of SBREFA commenters criticized OSHA's cost estimation
methodology, arguing that fundamental errors resulted in serious
underestimates of the costs of engineering controls. The commenters
asserted without any significant explanation that the task-by-task
incremental cost estimates (shown in Table V-23 of the PIRFA, Document
ID 1720, p. 749) should have been multiplied by two factors: (1) ``The
ratio of the RSMeans labor rate to the BLS wage and benefits rate,''
and (2) the inverse of the ``percentage in key occupations working on
task'' from Table V-26 (also in the PIRFA, Document ID 1720, p. 766).
Under this approach, the commenters argued that ``the cost of PEL
controls for brickmasons, blockmasons, cement masons and concrete
finishers performing grinding and tuckpointing would be approximately
seventy-two (72.0) times the ERG estimate, and . . . the cost of PEL
controls for drywall finishing (at the 50 [mu]g/m\3\ PEL) would be
approximately 7.2 times the ERG estimate'' (Document ID 0004).
    The rationalization for these calculations was not provided, and
OSHA found these conclusions without merit. The incremental control
costs shown in Table V-34 of the FEA were based on RSMeans estimates
for labor and equipment costs. As shown in Table V-34, these cost
estimates, after adjustments for productivity impacts, are used to
calculate the percentage increase in baseline costs associated with
each control. The RSMeans-based cost estimates shown in Table V-34 are
also used to estimate the share of total baseline task/project costs
accounted for by labor requirements. The averages of the percentage
increase due to incremental control costs and the labor share
(percentage) of total baseline costs are shown in Table V-37 of the
FEA. These two percentages are used to extrapolate the aggregate
control costs associated with each task. This extrapolation was based
on (1) the full-time-equivalent employment in key and secondary
occupations associated with each task, and (2) the value of the labor
time as measured by the BLS occupational wage statistics, adjusted for
fringe benefits.
    OSHA provided similar responses in the PEA and requested comment on
its responses to the SBREFA comments, but received none (see PEA, p. V-
131).
    The same set of SBREFA commenters further argued that OSHA's
analysis contained five more ``fundamental errors'' (Document ID 0004).
First, the commenters asserted that OSHA's calculations understate the
actual cost because they are based on old data (1999 or 2000 data from
RSMeans rather than RSMeans 2003 data). OSHA used the most recent
available data at the time the initial preliminary analysis was
completed and subsequently updated those data for the PEA (and the FEA)
using RSMeans estimates from 2008 (Document ID 1331). However, as noted
previously, the RSMeans estimates do not directly determine the
absolute level of aggregate compliance costs, but rather the labor
share (percentage) of project costs and incremental compliance costs as
a percentage of baseline costs. This aspect of the analysis received no
further comment and has been retained for the FEA.
    Second, the commenters asserted that there is no information to
``suggest much less substantiate the premise that the exposure
monitoring data in Tables 3-1 and 3-2 [in the ERG (2007a) report,
Document ID 1709)] (even if they were properly collected and analyzed)
are in any way representative of current workplace exposures across the
country'' (Document ID 0004). In response, OSHA points out that the
profiles used to estimate the numbers of workers exposed in excess of
each PEL option were, in fact, based on the extensively documented
technological feasibility analysis with many of the data points in the
exposure profiles being taken from the findings of OSHA inspections
(and based on ERG, 2007a, Document ID 1709). OSHA is tasked with using
the best available evidence to develop the analyses, and the data in
the exposure profile represent the best available evidence on current
workplace

exposures to respirable crystalline silica. More importantly, for
estimating the cost of controls, Table 1 in the final rule is intended
to be the default option for protecting workers performing covered
tasks, regardless of actual exposure level. The FEA reflects this,
while recognizing that a sizable minority of workers with exposures
below the PEL have limited their exposures by using such controls
currently.
    Third, the commenters claimed that there is ``is no information to
suggest much less substantiate the premise that the exposure monitoring
data in Tables 3-1 and 3-2 (even if they were representative of current
workplace exposures) are in any way representative of the non-existent,
theoretical jobs artificially created by the FTE [full-time equivalent]
analysis so as to justify their use as the foundation for Table 4-12''
(Document ID 0004). However, OSHA notes that the representative jobs on
which the cost analysis is based were designed to correspond directly
to the tasks assessed in the technological feasibility analysis.
Furthermore, Table 4-12 in ERG (2007a, Document ID 1709) was derived
directly from Table 3-2 and is independent of the ``FTE analysis.''
    Fourth, the commenters argued that a more logical and appropriate
methodology would assume that all FTEs were exposed above the PEL in
the absence of controls, and the commenter could find ``no
justification, and substantial support to the contrary, for an approach
that artificially condenses actual exposures into far more highly
concentrated exposures (by condensing all at-risk task hours into FTEs)
and then [assumes] that, despite the impact of this change, the grab
bag of exposure monitoring described in ERG Tables 3-1, 3-2 and 4-12
represents these FTEs'' (Document ID 0004). The commenters asserted
that the effect in ERG (2007a, Document ID 1709) of ``first multiplying
total project costs by the FTE percentage (from Table 4-8) and then by
the `Percentage of Workers Requiring Controls' from Table 4-12 (and
then by the average `Total Incremental Costs as % of Baseline Costs' by
job category from Table 4-7) results in an unjustified double
discounting of exposed workers in the incremental cost calculation''
(Document ID 0004).
    OSHA disagrees. The Agency notes that ERG (2007a, Document ID 1709)
used the exposure profiles from the industry profile to estimate the
number of full-time equivalent workers that are exposed above the PEL.
In other words, this exposure profile is applicable if all exposed
workers worked full time only at the specified silica-generating tasks.
The actual number exposed above the PEL is represented by the adjusted
FTE numbers (see Table 4-22 in ERG, 2007a, Document ID 1709). The
adjusted FTE estimate takes into account that most workers,
irrespective of occupation, spend some time working on jobs where no
silica contamination is present. The control costs (as opposed to some
program costs) are independent of the number of workers associated with
these worker-days. OSHA noted in the PEA that the thrust of the comment
about ``double discounting'' was unclear, but the commenters did not
respond with clarification. Nothing is ``discounted'' in the estimation
of aggregate control costs.
    Finally, the SBREFA commenters argued that the ``application of the
FTE analysis to the additional equipment costs is based on the wholly
unfounded assumption, contrary to actual experience, that this
additional equipment could be used with perfect efficiency (i.e., never
idle) so that it is only at a particular site during the time the at-
risk tasks are being performed'' (Document ID 0004). In response, OSHA
notes that its analysis does in fact assume some efficiency with
respect to the use of additional equipment required for controls.
However, many of the equipment costs are based on monthly equipment
rental rates provided by RSMeans that already embody some degree of
idleness over the course of a year (see ERG, 2007a, Table 4-3, Document
ID 1709). In other cases, daily equipment costs were directly estimated
based on equipment purchase costs, annualization factors, and assumed
operating and maintenance costs.\38\ OSHA did receive further comment
on the issue following the publication of the PEA (Document ID 4217,
pp. 84-88), and, in response, the Agency developed prorated ownership
costs (equivalent to twice the rental rates) for control equipment for
tradespersons performing tasks involving short-term, intermittent
silica work.
---------------------------------------------------------------------------

    \38\ These were originally translated to daily costs on the
assumption of full-time usage (240 days per year). However, in
response to this comment, this rate was adjusted downward, assuming
instead that equipment would be used 150 days per year (30 weeks),
on average; OSHA applied this downward adjustment to equipment usage
in the PEA and the effect of this change in equipment usage was to
increase the daily cost of control equipment.
---------------------------------------------------------------------------

Public Comment on Engineering Control Costs in Construction
    Having already incorporated comments from small business in the
SBREFA panel process, the Agency produced revised estimates for the PEA
in support of the proposed silica rule. In the PEA, OSHA requested
comments from rulemaking participants on the Agency's preliminary
estimate of control costs in construction. Below are comments
representative of the prominent issues that raised concerns.
    The most broad-based critique of the construction cost analysis
came from the Construction Industry Safety Coalition (CISC), and its
consultant Environomics (Document IDs 2319, 2320, and 4217). Several of
their arguments regarding underestimation of costs related to an
undercount of the affected construction population (for example, they
believed OSHA should have accounted for the cost to control silica
exposures for plumbers). OSHA agrees in part that there were some
occupations--plumbers, plumber helpers, electricians, electrician
helpers, roofers, roofer helpers, terrazzo workers and finishers, and
sheet metal workers--that likely have exposure and should be included
in this analysis, as they do perform some activities covered by Table
1. These are discussed in FEA Chapter III, Industry Profile.
Owning Versus Renting Engineering Controls in Construction
    OSHA also received comments regarding the availability of control
equipment. In its post-hearing brief, CISC commented:

    In the Agency's cost analysis, it has also made the entirely
impractical assumption that controls (e.g., wet methods, LEV) for
the tools that construction workers use in performing tasks that
generate respirable silica need to be available only during the
exact duration while a dusty task is performed. The CISC estimates
costs instead to provide control equipment on an ``always
available'' basis to workers who engage in dusty tasks. Control
equipment must be available whenever a worker may need to perform an
at-risk task, and not for only the very limited duration when the
at-risk task is actually being performed. Costs for the engineering
controls required to meet the reduced PEL in the proposed rule will
be far higher than OSHA estimates (Document ID 4217, p. 29).

    While OSHA agrees that CISC's argument has merit, during hearing
testimony CISC's representative acknowledged that its estimates did not
initially take into account the economic life of a control. This is
reflected in the following conversation between CISC's Stuart Sessions
and OSHA's Robert Stone:

    MR. STONE: So returning to the methodology for costing, you
pretty much used our numbers and you used our, presumably, like you
mentioned the dust shroud that has a one-year life and, therefore,

after one year, you take the cost again the second year, is that
right? And the third year, and so on? Okay. I think this is perhaps
a problem with the way you've done your analysis. We used basically
FTEs, full-time equivalents. You're using three percent of the time
let's say for plumbers, as an example, you're applying it to three
crews, all right? At the end of one year, you're having them buy
another dust shroud. And my view . . . they will have used nine
percent of the economic life of the dust shroud. Now, you can argue
I'd make an adjustment because we estimate 150-[day construction
work-year] use of it, for full-time use. This would suggest, though,
that after one year, you will have used one-sixth of the life of
that dust shroud and an employer is not going to throw it out. It's
still functional. He'll use it for the next five years. He'll use it
for six years. Any views on that?
* * *
    MR. SESSIONS: Yes. That's a good point, and I hadn't thought
about that.
    MR. STONE: Okay, thank you. A related point is actually the same
issue. It would be operating in maintenance costs. You're--it's
going to be one-sixth of our original estimate, but I don't think
you've made that adjustment.
    MR. SESSIONS: Correct. (Document ID 3580, Tr. 1501-1502).
    After the hearing discussion, CISC revised its methodology,
noting:
    After additional thought and discussion about this issue with
several construction tradespeople, we . . . concluded that useful
life is a function of both how often the tool and controls are used,
but also how long they sit in the construction worker's truck and
get bounced around going from job site to job site (even when they
are not used), and how often they are taken out of the truck and
returned to the truck (even when they are only set up then taken
down at the job site but not actually used). Thus useful life will
increase if a tool sits idle for some percentage of the time when it
is available, but useful life will not increase to the same
proportional extent as the decrease in usage. We assumed in the
example in workbook Tab # X2B that using the tool and equipment 1/4
as often will double its useful life (Document ID 4217, p 89).

    OSHA agrees with this updated methodology and has adopted CISC's
approach--essentially assuming one-half of the usage life over which to
amortize the purchased control equipment--for jobs that typically
involve intermittent short-term exposure. The jobs for which the Agency
assumed a half-life of the control equipment were: (1) Hole drillers
using hand-held or stand-mounted drills--for electricians, plumbers,
carpenters, and their helpers, and for sheet metal workers; and (2)
handheld power saws for carpenters and their helpers. Note that OSHA's
adoption of this updated approach resolves CISC's criticism that OSHA
had not accounted for productivity decreases from controls not being
available when the worker needs to use them for short-term or
intermittent silica jobs.
    For all other construction jobs (i.e., those not itemized above
involving intermittent short-term exposure), OSHA did not adopt CISC's
approach but instead (as in the PEA) used the market-derived rental
rate for control equipment without either doubling the rental rate to
take into account ``down-time'' or requiring purchase of the control
equipment. There are several reasons OSHA retained its PEA approach for
these jobs in the final rule:
     In most cases, an employer's own/rent decision for control
equipment will be determined by the own/rent decision for the
construction equipment (including construction tools) to which the
control equipment will be applied. If the employer rents/owns the
construction equipment, the employer will rent/own the control
equipment. The major exception would be if a particular piece of
control equipment could be applied to many types of construction
equipment. An example might be a dust collector. In that situation, the
employer might find it economic to rent the construction equipment and
own the control equipment. But, in that case, the purchased control
equipment will not be sitting idle.
     Construction equipment is sufficiently expensive that
employers, as a general matter, will not find it economically efficient
to have it sitting idle. That is why employers so frequently rent
construction equipment. Of course, employers that do only one type of
construction job all year (or those that are sufficiently large that
they work on that particular type of construction job all year) will
find it economic to own the construction equipment--as well as the
control equipment--but then the control equipment will not be sitting
idle.
     In light of permit requirements and other job-planning
requirements, in almost all cases, the employer will have advance
knowledge of the details of the construction job (as opposed to,
sometimes, repair work in general industry). This knowledge would
include the construction equipment--and controls--required to perform
the job. In fact, employers will often schedule construction jobs
precisely to avoid having construction equipment sitting idle. In other
words, the typical employer--and certainly the competent employer--
won't come to the job site unprepared, needing to leave the job site to
obtain rental equipment or controls.
     The construction sector is a significant component of the
U.S. economy. There is a large, competitive construction equipment/
control rental market in place to serve it. In most places, employers
should be able to obtain needed construction equipment/controls in a
timely manner under terms similar to those estimated here.
    For the aforementioned reasons, OSHA believes that the ownership-
versus-rental cost issue, except in the case of construction jobs that
involve intermittent short-term exposure, is somewhat of a red herring.
The difference in amortized cost should be negligible, given that
employers will choose to own or rent based on whichever is the lower-
cost alternative. In fact, because rental costs are typically somewhat
higher than amortized ownership costs, OSHA may have overestimated
compliance costs for those employers who purchase control equipment.
Self-Employed Persons
    CISC, and its contractor Environomics, claimed in their comments
that OSHA had omitted the costs of compliance by sole proprietors
(typically self-employed persons) (Document ID 4217, p. 80). The
inclusion of such costs and the circumstances under which they would
arise are discussed in Chapter III of the FEA. In the FEA OSHA has
accounted for costs associated with controlling employee exposures from
sole proprietor activities. The actual self-employment data and the
estimated effect on employer costs are presented at the end of this
section on engineering control costs in construction.
Full Cost vs. Incremental Cost
    Prior to the PEA, a participant in the SBREFA process noted that
while OSHA established the total incremental cost for each silica
control method (summarized for the final rule in Table V-35 of the
FEA), the cost estimates were based on the application of a single
control method. The commenter argued that there may be cases where two
or more control methods would have to be applied concurrently to meet
the exposure limits (Document ID 0968, p. 14). In response, OSHA noted
in the PEA that for each task, specified control options correspond to
the control methods described in the technological feasibility analysis
in Chapter IV (of the PEA). These methods reflected the choices laid
out in Table 1 of the proposed rule; they were also presented in Table
V-25 in the PEA along with OSHA's calculation of the weighted average
proportion of project costs attributable to labor and the incremental

control costs as a percentage of baseline project cost.
    Throughout the comment period, CISC reiterated its pre-PEA
objections to OSHA's methodology of estimating incremental costs
instead of the ``full'' compliance costs, which CISC defined as
including the costs for employers to meet their existing duty to comply
with OSHA's old PEL (CISC claims employers of ``nearly 60,000 workers''
were not in compliance with OSHA's preceding standard and would have
OSHA attribute the costs of compliance with the preceding standard to
the costs of this rule) (Document ID 4217, p. 33):
    In our view, OSHA has made two errors in the approach it has taken:
     First, the ``full'' compliance costs for reducing worker
exposures from their current levels to below the proposed new PEL are
the conceptually correct costs to estimate when assessing economic
feasibility, not the ``incremental'' costs for reducing exposures to
below the proposed new PEL from a starting point assuming compliance
with the current PEL. In practice, employers will face the full costs,
not the lesser incremental costs, and the economic feasibility
assessment should consider whether employers can afford these full
costs, not the hypothetical and lower incremental costs.
     Second, OSHA has made a conceptual error in the Agency's
methodology for estimating compliance costs * * * Insofar as OSHA omits
all costs for [employees with exposures >250 [micro]g/m\3\]--failing to
estimate the costs to reduce their exposures all the way down below 50
[micro]g/m\3\ instead of only to below 250 [micro]g/m\3\--OSHA
estimates costs that fall short of the incremental costs of the
Proposed Standard that the Agency aims to estimate. (Document ID 4217,
pp. 96-97)
    Both arguments are now largely moot because in the FEA almost all
of the construction engineering control costs are based on compliance
with Table 1 and encompass all employees engaged in the Table 1 tasks,
regardless of their current level of exposure. OSHA has included the
full incremental--and full total--costs for all employers in
construction who have workers who are performing tasks listed on Table
1, even those workers with exposures currently above 250 [micro]g/m\3\.
    CISC's arguments for the construction sector are now only relevant
to the very few tasks not covered by Table 1, such as tunnel boring.
OSHA therefore addresses CISC's arguments in the context of those few
tasks.
    The first argument is that employers who are not in compliance with
the preceding PEL of 250 [micro]g/m\3\ will have to incur costs to
achieve that PEL in addition to the costs they will incur to reach the
new PEL of 50 [micro]g/m\3\. As laid out in the PEA, OSHA rejects this
position, as this is inappropriate for estimating economic feasibility
among firms making a good faith effort to comply with the existing
silica rule. Employers who had a legal obligation to comply with OSHA's
preceding PEL but failed to do so are not excused from their previous
obligation by the new rule; nor can the fulfillment of a pre-existing
duty be fairly re-characterized as a new duty resulting from a new
rule. But this issue is not limited to construction, and a more
complete discussion is presented in the general industry engineering
control cost section in the FEA.
    The second argument can be dismissed on similar grounds. CISC's
argument appears to assume that employers will incur different costs
for different controls necessary to reduce exposures from above 250
[micro]g/m\3\ down to 250 [micro]g/m\3\, and from 250 [micro]g/m\3\
down to 50 [micro]g/m\3\. In many cases, however, the same controls
needed to bring exposures below 250 [micro]g/m\3\ will also bring
exposures to 50 [micro]g/m\3\ or below, so there would be no cost
associated with the new rule. To the extent that separate controls are
required to reduce exposures down from 250 [micro]g/m\3\ to 50
[micro]g/m\3\, OSHA does account for the costs for those controls.
General Comments on Cost Methodology
    James Hardie Building Products commissioned Peter Soyka of Soyka &
Company LLC to perform an evaluation of the PEA. While Mr. Soyka's
comments cover many aspects of the analysis and overlap with those of
other commenters, some were relatively unique.
    In one place, Mr. Soyka questions the entire method of analyzing
jobs from the level of workers and their tasks. He expressed concern
about both what he termed the failure to capture the cost to the
establishment, as well as the need for workers to have controls
available (Document ID 2322, Attachment G, p. 165). OSHA did not,
however, ignore other costs for establishments. Elements of these costs
are dealt with at the establishment level for some ancillary provisions
of the standard, and are discussed later in this chapter. The second
element, regarding the availability of controls for certain
occupations, mirrors concerns raised by Environomics and CISC, and has
been dealt with above.
    Elsewhere in his comments, Mr. Soyka states that ``OSHA should
develop revised unit costs that consider the full array of elements
that affect what a business charges its customers for a unit of time
expended.'' Such unit costs,'' he submitted, ``would include direct
labor, fringe benefits, overhead, SG&A, and a reasonable allowance for
profit (e.g., the typical cost of capital found in a specific industry
or overall)'' (Document ID 2322, Attachment G, p. 182). The approach
put forward in the PEA and in the FEA incorporates fringe labor costs.
OSHA has provided a sensitivity analysis of the effects of including
other cost elements in the sensitivity analysis section of the FEA. As
noted elsewhere, for the FEA the Agency recognizes that the labor
productivity effect of adopting certain controls is accompanied by a
loss of productivity in equipment under certain circumstances; that
additional cost has been incorporated in the FEA. The National
Association of Home Builders (NAHB) faulted the costing of engineering
controls in the PEA on several grounds, including several very similar
to those raised by Mr. Soyka and addressed earlier. NAHB also stated
that OSHA has not considered the ``unique nature of construction, in
that sites are not fixed in nature, and that equipment may need to be
moved between several sites in a single day'' or the ``compliance costs
for cleanup of the jobsites'' (Document ID 2296, p. 38). Both are
addressed in the FEA as opportunity costs or housekeeping costs.
Other Aspects of Unit Costs
    Following publication of the NPRM, a representative of
petrochemical employers, the American Fuel and Petrochemical
Manufacturers, raised concerns about retrofitting and clean-up costs
that it claimed were improperly omitted from OSHA's analysis of
engineering controls in construction:

    OSHA claims ``[t]he estimated costs for the proposed silica
standard rule include the additional costs necessary for employers
to achieve full compliance.''[ ] Yet it fails to consider the
additional costs of retrofitting existing equipment to comply with
Table 1 in Section 1926.1053 (Table 1). In addition to acquiring new
engineering controls not previously implemented, many employers will
have to modify pre-existing equipment to come into compliance (e.g.,
outfitting the cab of a heavy equipment bulldozer with air
conditioning and positive pressure). Table V-3, found in OSHA's
complete PEA, begins to address these costs by enumerating the
capital and operating costs for the engineering controls required by
Table 1. But it does not account for the ancillary costs of

retrofitting those controls, including the cost of retrofitting the
equipment itself as well as the lost time the facility may absorb in
doing so.
    OSHA also fails to account for the clean-up costs associated
with the natural by-products from Table 1's required engineering
controls. For example, many of the engineering controls require the
use of wet methods or water delivery systems. [ ] Employers will
incur costs from removing (from the clean-up process itself and lost
time) excess water to prevent ice or mold from developing. Yet these
costs go unaccounted for in the PEA (Document ID 2350, pp. 6-7).

    In the FEA, the Agency does not include any specific cost for
retrofitting equipment. The record indicates that almost universally
employers either already have equipment with the required controls
available for use (e.g., wet method for saw), or the equipment allows
for the easy addition of a control (e.g., shroud for HVAC).
Furthermore, most equipment is portable and/or handheld and is
relatively inexpensive with a useful life of two years or less. As a
result, it would simply not make economic sense to retrofit the
equipment when it would be less expensive to replace it. In addition,
most other types of relevant construction equipment--heavier and
drivable--generally have a useful life of ten years or less; control-
ready equipment of this type has been on the market for years and is
typically already in use. Thus, OSHA did not estimate any retrofitting
costs. While some employers might still retain pieces of earth-moving
equipment that do not have a cab that complies with Table 1, equipment
with a cab is the industry standard for both purchase and rental. As
discussed in this chapter in the context of productivity, the
implication is that the market has shifted to heavy equipment with cabs
even in the absence of a silica standard. In addition, in final Table 1
OSHA has reduced the number of tasks that require equipment with
enclosed cabs to just a single task: Heavy equipment and utility
vehicles used to abrade or fracture silica-containing materials or used
during demolition activities involving silica-containing materials. For
the odd piece of old, cab-less heavy equipment which does not conform
to the requirements of Table 1, individual employers have the choice of
renting the required equipment to perform that single task, or simply
using the cab-less equipment only on non-silica tasks (thereby ceding
the one silica-abrading construction task to employers that have more
up-to-date equipment). In short, the requirement to use a cab when
performing Table 1 tasks is not a requirement to retrofit all existing
equipment that might conceivably be used for a Table 1 task.
    Regarding the question of clean-up costs, the commenter treats the
issue as if there were no clean-up costs associated with generating
silica currently. As discussed in the Environmental Impact Analysis
(Section XIV of this preamble) and in the discussion of productivity
impacts later in this section, there was substantial comment to the
record indicating that in many, if not most, situations, the controls
associated with reducing silica exposure will lead to a net decrease in
the amount of time required for cleanup after a job. While OSHA is not
attempting to quantify any potential cost savings, the record likewise
does not support attributing additional costs to cleanup.
Specific Industry/Equipment Category Cost Comments
Crushing Machines
    William Turley, executive director of the Construction & Demolition
Recycling Association (CDRA), broadly described the impacts he
anticipated for his industry.

    Recyclers who crush materials for reentry into the economic
mainstream as aggregate products would appear to have to do all of
the following:
     Purchase and install climate-controlled enclosures or
cabs for all crusher operators;
     Install crusher baghouses for particulate emission
reduction;
     Enclose conveyor belts--a measure unprecedented in our
industry;
     Install effectively designed and maintained water
spraying equipment;
     Impose full-shift use of respirators for all quality
control hand pickers working on processing lines;
     Establish and implement emission testing protocols and
procedures to ensure compliance with the PEL;
     Implement medical surveillance programs for all
employees engaged in material crushing activities; and
     Achieve a ``no visible emissions'' standard, which
frankly is both unattainable and utterly unreasonable.
    To the best of our knowledge, no recycler in the United States
has a system even resembling the above. The cost of such systems
will unquestionably threaten the economic viability of construction
& demolition debris recyclers across the Country. It must also be
pointed out that the industry has an exceptionally diverse
composition of larger operators with higher economic margins and
small operations with limited capabilities to capitalize the type of
equipment called for in this rulemaking (Document ID 2220, pp. 2-3).

    The final silica rule does not require all the above steps. OSHA
expects that crushing machines will be used for construction/demolition
activities, as discussed in detail in the Summary and Explanation of
the standard. As such, OSHA anticipates that employers engaged in the
recycling operation would follow Table 1 and would not need to conduct
exposure monitoring.
    For crushing machines, OSHA removed the ``no visible emissions''
requirement and the requirement for enclosed cabs, both of which had
been in the proposed Table 1. Employers are now required to use a spray
system and comply with manufacturer instructions. Also, there is no
requirement to enclose conveyor belts or install crusher baghouses.
Instead, employees must use a remote control station or ventilated
booth that provides fresh, climate-controlled air to the operator. For
the FEA, OSHA added the cost of a ventilated booth for the use of
crushing machines in construction/demolition activities. Most crushing
machines are already equipped with movable controls that will allow
operation of the machine from inside the booth, so no additional
equipment modifications will be required for most machines. Crushers
available for purchase or rental are also typically equipped with a
water spray system, so OSHA has not assessed any incremental cost for
sprayers.
Homebuilding--Roofing
    The National Roofing Contractors Association (NRCA) objected to
OSHA's preliminary cost estimates for controls used to limit silica
exposure in roofing operations, claiming that OSHA's preliminary
estimate of an average of $550 per year for firms that employ 20
workers or fewer (covering the majority of roofing contractors) had
significantly underestimated the cost of specialized saws that would be
required for roofing equipment. In support of the argument that OSHA
had underestimated costs, NRCA identified costs for retrofitting
portable saws with integrated dust collection systems along with
specialized vacuums equipped with HEPA filters (Document ID 2214 p. 4).
    The task of cutting most roofing materials would fall under
``Handheld power saws (any blade diameter)'' in Table 1, and the final
version of Table 1 does not allow for the dust collection methods
described, so the majority of costs quoted by NAHB are not relevant.
Instead, the final version of Table 1 requires that the employer use
wet methods. Second, the estimate of $550 a year in costs to very small
employers was an estimated average across all affected establishments
with fewer than 20 employees, not just roofing operations in
homebuilding. Questions of small business impact or economic

feasibility for the roofing industry are dealt with Chapter VI of the
FEA.
    The comments submitted by consultant Peter Soyka on behalf of James
Hardie Building Products (``Hardie'') presented a table of typical
devices with engineering controls involved in fiber cement cutting and
an un-sourced range of costs for the retail prices of those types of
devices and their controls (Document ID 2322, p. 13).
    Hardie's inclusion of a table of retail prices for the purchase of
equipment with controls suggests there may have been a misunderstanding
of the nature of OSHA's cost methodology--it is not based on purchasing
entirely new pieces of equipment, but making sure the equipment has the
controls necessary to comply with Table 1. To the extent commenters
submitted estimates addressing the latter question, OSHA has taken them
into consideration in its final estimates.
Asphalt Milling
    Fann Contracting, Inc. acknowledged that the availability of
equipment with built-in controls is rising. However, the commenter
suggested that OSHA's preliminary assessment of the design
specifications and costs for the engineering controls identified in
Table 1 of the proposed rule had under-counted the amount of milling
machines and other paving-related equipment that the commenter believed
would still require additional retrofits to enclosed cabs (sealing
cracks, adding air conditioning, upgrading to HEPA filters, etc.) to
satisfy the requirements in Table 1 (Document ID 2116, pp. 6-7).
    Table 1 in the final rule does not require a cab for milling
machines or any of the equipment identified by the commenter for paving
purposes, so the commenter's concerns are not relevant. Table 1 only
requires cabs for ``(xvii) Heavy equipment and utility vehicles used to
abrade or fracture silica-containing materials (e.g., hoe-ramming, rock
ripping) or used during demolition activities involving silica-
containing materials,'' and specifies it as an option for ``(ix)
Vehicle-mounted drilling rigs for rock and concrete.'' Table 1 requires
employers to use wet methods to control dust emissions from milling
machines. These costs have been accounted for in the cost analysis.
Drywall Finishing
    A SBREFA commenter raised questions about the availability of
silica-free joint compound for drywall finishing (Document ID 0004). In
the PEA, OSHA relied on NIOSH studies showing that silica-free joint
compounds had become readily available in recent years (see ERG, 2007a,
Section 3.2) (Document ID 1709). The cost model for the PEA assumed
that 20 percent of drywall finishing jobs would continue to use
conventional joint compound. Based on additional information, OSHA has
determined that all commercially available joint compounds have no, or
very low amounts of, silica and do not pose a risk to workers from
respirable crystalline silica (Document ID 2296, pp. 32, 36; 1335, p.
iii) and has therefore not included drywall finishing in Table 1 or
taken any costs for this task (see Section XV. Summary and Explanation
of the Standards, Specified Exposure Control Methods for more
information).
Number of Days Controls Are Used Annually
    Whether equipment, and the relevant controls, are rented or
purchased, the effective annual cost of the equipment is based on the
assumed number of days per year that it would be used. In the PEA, OSHA
had estimated rental of the equipment for 150 days during each 365-day
period. Based on comments received from industry representatives during
the 2003 SBAR Panel process (Docket ID 0968), this estimate had been
reduced from an average of 250 days in the Preliminary Initial
Regulatory Flexibility Analysis (PIRFA). This reduced workday estimate
presumably reflected winter weather slowdown in many parts of the
country, as well as general weather conditions (such as rain) that can
interfere with many construction processes, and resulted in \2/3\
higher daily rental rates for control equipment.
    However, Environomics, in developing its own cost estimates,
assumed that control equipment would be used for 250 days a year,
without an articulated rationale for departing from the estimate
provided during the SBAR Panel process (Document ID 4023, Attachment 2,
X2B-Hole Drilling Unit Costs, Cell P:Q44). More importantly,
Environomics selectively and inconsistently applied 250 days only to
the frequency of usage but not to the daily rate (which OSHA had based
on 150 days of usage). To see why it is a problem to apply a different
number of days to the same daily rate, consider a piece of control
equipment, with a one-year life, known to cost $1,500. Using a 150-day
construction work-year, OSHA would estimate a daily rate for the
control equipment of $10 ($1,500/150 days in the construction work-
year). The annual cost for that control would be $1,500 ($10 multiplied
by 150 days). Using the same example, Environomics would keep OSHA's
daily rate of $10 (amortized over 150 days) but apply it to a 250-day
calendar to arrive at an annual cost of $2,500--where the one-year cost
of the equipment was known to be $1,500. In short, the selective 250-
day methodology Environomics used results in an overestimation of costs
by 67 percent.
    Accordingly, OSHA has decided to retain the 150-day construction
work year based on the best available evidence, and the Agency has
consistently applied that work-year throughout the cost analysis
developed in the FEA for construction. (General industry and maritime
work is typically less affected by weather, so a separate work-year
number of days is used for those calculations).
Unit Control Costs
    In developing the cost estimates in the FEA, OSHA defined silica
dust control measures for each representative job (see ERG (2007a,
Document ID 1709). Generally, these controls involve either a water-
spray approach (wet method) or a dust collection system to capture and
suppress the release of respirable silica dust. Wet-method controls
require a water source (e.g., tank) and hoses. The size of the tank
varies with the nature of the job and ranges from a portable water tank
(unspecified capacity) costing $15.50 a day to a 10,000 gallon water
tank with an engine-driven discharge, costing $168.38 a day.\39\
Depending on the type of tool being used, dust collection methods
entail vacuum equipment, including a vacuum unit and hoses, and either
a dust shroud or an extractor. The capacity of the vacuum depends on
the type and size of tool being used. Some equipment, such as concrete
floor grinders, comes equipped with a dust collection system and a port
for a vacuum hose. The estimates of control costs for those jobs using
dust collection methods also include the cost for HEPA filters.
---------------------------------------------------------------------------

    \39\ See Chapter X in the FEA for a discussion on the
environmental impacts resulting from the use of wet methods for
controlling exposure to silica.
---------------------------------------------------------------------------

    The unit costs for most control equipment are based on price
information collected from manufacturers and vendors. In some cases,
control equipment costs were based on data from RSMeans (2008) on
equipment rental charges (Document ID 1331). Table V-32 of the FEA
shows the general unit control equipment costs and the assumptions that
OSHA used to estimate the costs for specific types of jobs.
    For each job identified as needing engineering controls, OSHA
estimated

the annual cost of the appropriate controls and translated this cost to
a daily charge, based on an assumed use of 150 days per year (30
weeks), as explained earlier. The only exceptions were engineering
controls expected to be used for short-term, intermittent work. For
these controls, consistent with the CISC methodology that OSHA adopted,
carpenters and other occupational groups were estimated to purchase
this control equipment, and for costing purposes, OSHA amortized the
equipment over its ``half-life''--that is, over 75 days rather than 150
days (effectively doubling the daily capital costs of the equipment).
Accordingly, Table V-32 of the FEA shows separate daily cost estimates,
for regular and for infrequent use, for a dust extraction kit and for a
10-15 gallon vacuum with a HEPA filter.
Incremental Labor Costs and Productivity Impacts in Construction
    In addition to incremental equipment costs, OSHA estimated in the
PEA the incremental labor costs generated by implementing silica dust
controls. These labor costs were generated by: (1) The extra time
needed for workers to set up the control equipment; (2) potential
reductions in productivity stemming from use of the controls; (3)
additional time to service vacuum dust control equipment; and (4)
additional housekeeping time associated with or generated by the need
to reduce exposures. All additional labor costs related to the use of
controls were subsumed into a single additional labor productivity
impact estimate for each of the representative job categories. Except
where otherwise noted, the productivity impact described is negative,
meaning that the addition of the control is expected to reduce
productivity. To develop estimates of the labor productivity impacts of
the dust control equipment that would be required as a result of the
proposed standard, ERG interviewed equipment dealers, construction
contractors, industry safety personnel, and researchers working on
construction health topics.
    In part, because most silica dust controls are not yet the norm in
construction, knowledge about the impact of dust controls on
productivity was uneven and quite limited. More precisely, few
individuals that ERG interviewed were in any position to compare
productivity with and without controls and the literature on this topic
appears deficient in this regard. Overall, telephone contacts produced
a variety of opinions on labor productivity effects, but very few
quantitative estimates. Of all the sources contacted, equipment rental
agencies and construction firms estimated the largest (negative)
productivity impacts. Some equipment vendors suggested that there are
positive productivity effects from control equipment due to improved
worker comfort (from the reduction in dust levels). Others suggested
that the use of dust collection equipment reduces or eliminates the
need to clean up dust after job completion. Comments to the record,
discussed below, closely mirrored this preliminary information.
    The estimation of labor productivity effects is also complicated by
the job- and site-specific factors that influence silica dust exposures
and requirements for silica dust control. Potential exposures vary
widely with hard-to-predict characteristics of some specific work tasks
(e.g., characteristics of materials being drilled), environmental
factors (e.g., wet or dry conditions, soil conditions, wind
conditions), work locations (e.g., varying dust control and dust
cleanup requirements for inside or outside jobs), and other factors.
Generalizations about productivity impacts, therefore, are hampered by
the range of silica dust control requirements and work circumstances.
    After considering the existing evidence OSHA concluded that labor
productivity impacts are often likely to occur and accounted for them
in the PEA analysis. In the PEA, depending on the general likelihood of
productivity impacts for each activity, OSHA used a productivity impact
ranging from zero to negative five percent of output. After considering
the many comments advocating for both increasing and decreasing the
productivity impact estimates, OSHA has concluded that the estimates in
the PEA were approximately correct and has retained the PEA estimates
for the FEA. The comments and factors influencing each selection are
described in the following discussion.
SBREFA Panel Comments on Productivity Impacts
    In response to the SBREFA Panel, the Reform OSHA Coalition
commented on the estimates of the impact of exposure control equipment
on productivity during construction operations. This SBREFA commenter
noted that the estimates of the productivity impact of using additional
control measures were based on interviews with dealers, contractors,
and researchers working on construction health topics and expressed its
opinion that it was not clear how this ``purely qualitative analysis
[was translated] into productivity [impact] rates . . . . '' (Document
ID 0968, p. 14). The commenter indicated that engineering control
compliance costs would be sensitive to the ultimate choice of
productivity impact measures (Id.).
    OSHA responded to these comments in the PEA as part of the
discussion of the basis for OSHA's productivity estimates. OSHA
summarizes the responses to SBREFA comments here for the convenience of
the reader. As described in the PEA, ERG's research revealed little
substantive, quantitative evidence about the magnitude of the
productivity impacts of the controls, and in some cases, the direction
of the impacts (positive or negative) appeared to depend on the
specific nature of the job. OSHA's estimates in the preliminary
analysis reflected ERG's best professional judgment about the likely
magnitude of these impacts. Some of the estimates may be conservative
because under some scenarios for certain tasks the productivity impacts
could be significantly smaller than those shown in Table V-23 of the
PEA. In some scenarios the productivity impact may even be positive.
    The same commenter also expressed a concern that even though
``silica is not now considered a hazardous waste,'' OSHA had not
analyzed the impact of the proposed rule on disposal of ``[silica-
]contaminated'' wastes such as ``filters of dust control vacuums and
contaminated water discharge'' (Document ID 0968, p. 28). The commenter
asserted that disposal issues are ``acute on the construction site
where a means to readily dispose of such material or water is not
available'' (Id.). The comment was somewhat puzzling because the
comment was premised on the fact that there is not currently any
``hazardous'' classification for such waste that would trigger special
disposal duties, and the commenter did not explain why any additional
costs would be incurred beyond normal disposal practices. OSHA did not
identify any new areas of cost in its Environmental Impacts analysis
presented in the FEA, and finds no evidence that employers will be
required to incur additional environmental costs as a result of this
rule, other than some potential permit-modification notification costs
addressed in the discussion of engineering control costs for general
industry in the FEA. The incremental disposal costs resulting from dust
collected in vacuums, discarded filters, and other sources in
construction are therefore likely to be de minimis. An analysis of wet
methods for dust controls suggests that in most cases the amount of
slurry discharge is not

sufficient to cause a runoff to storm drains or surface water.\40\
---------------------------------------------------------------------------

    \40\ For a more detailed discussion of this issue, see Chapter X
of the FEA.
---------------------------------------------------------------------------

Public Comment on Productivity Impacts in Construction
    OSHA invited comment on the productivity impacts--positive and
negative--resulting from the introduction of controls to limit exposure
to silica. In the discussion below, OSHA reviews comments supporting
both negative productivity impacts and positive productivity impacts.
The comments supporting negative productivity impacts include
assertions that OSHA underestimated the negative productivity impact of
complying with the silica rule, failed to include a productivity impact
on equipment, and failed to include a fixed productivity impact. OSHA
considered those comments before concluding that it will generally
retain the approach it used in the PEA, with the exception of
selectively adding additional costs for productivity impacts on
equipment in response to a point raised by CISC. OSHA will also explain
separately why it is not calculating any productivity impact for two
specific activities: (1) Use of cabs for earthmoving equipment, and (2)
drywall installation.
Public Comments Suggesting That OSHA Underestimated the Productivity
Impacts Associated With Engineering Controls
    The Interlocking Concrete Pavement Institute reported that
``converting from in-place paver cutting to wet cutting and/or vacuum
systems could induce a 50 percent productivity penalty,'' but did not
otherwise substantiate that claim beyond noting that it was a survey
response from one of its members (Document ID 2246, Attachment 1, p.
3).
    Mr. Soyka, in the comments prepared for Hardie, critiqued OSHA's
estimates of the productivity impact on construction operations as
``far too small'' and urged OSHA to adjust productivity-loss estimates
based on empirical data ``if available'' (Document ID 2322, Appendix G,
pp. 14-15 and 21-22). However, the commenter did not clearly identify
any such empirical data in the comments. The only labor-based
engineering control cost alternative offered by the commenter that
resembled ``empirical data'' is the addition of a seven-hour penalty
per job that was ``based on a JHI time-motion study'' apparently
conducted exclusively in a single industry (new home construction) and
comprised of data from just the JHI study (Document ID 2322, Appendix
G, Attachment A, p. A-8). OSHA could not determine whether it would
actually supply new ``empirical evidence'' that would warrant a change
from the preliminary estimate because the study was not submitted into
the record. The commenter cites ``James Hardie Building Products, Inc.,
undated, pg. 15,'' which appears to align with an entry in the list of
references to an undated ``James Hardie Labor Efficiency Manual,'' but
that manual was not submitted into the record.
    Mr. Soyka recommended that OSHA use time-motion studies to derive
the estimated productivity impacts.

    [. . . F]ew [of the productivity penalties estimated by OSHA]
are supported by actual data (e.g., time-motion studies). OSHA
should apply a more conservative approach that considers how work
flow and task completion are likely to be affected by newly required
changes to existing practices as well as entirely new activities
(Document ID 2322, Appendix G).

    In addition, Mr. Soyka developed an alternative cost model that
included additional productivity impacts that OSHA did not include. In
this model Mr. Soyka ``assumed that wherever possible, company owners
in the residential construction industry will outsource their
compliance obligations to specific subcontractors . . . providing the
products and services that might generate significant amounts of silica
dust'' (Document ID 2322, Appendix G, p. 26). In this scenario, Mr.
Soyka determined that the employer would require ``the subcontractor to
relocate its work location outside the house(s) being constructed to a
distance sufficient to ensure that silica dust concentrations remained
minimal inside and around the house(s)'' and that ``relocating the
materials and work giving rise to silica dust generation [. . .] would
add substantially to the time required to complete the associated
tasks'' (Document ID 2322, Appendix G, p. 30). He accounted for this
additional time by increasing the productivity impact on the specialty
subcontractors to seven hours per job, ``based upon time-motion studies
conducted by James Hardie (James Hardie Building Products, Inc.,
undated, pg. 15)'' (Document ID 2322, Appendix G, p. 31).
    Mr. Soyka's model also included a productivity impact for ``wearing
respirators to account for fatigue and adverse impacts on employee-to-
employee communication'' (Document ID 2322, Appendix G, p. 32).
    OSHA fundamentally disagrees with the Mr. Soyka's assumptions. Mr.
Soyka's assumption that all silica-generating tasks need to be removed
from the homebuilding site results from a misunderstanding of OSHA's
statement that ``[i]n response to the proposed rule, many employers are
likely to assign work so that fewer construction workers perform tasks
involving silica exposure; correspondingly, construction work involving
silica exposure will tend to become a full-time job for some
construction workers'' (FR, 2013, at 56357) (Document ID 2322, Appendix
G, p. 25). OSHA did not mean that silica-generating tasks will be
subcontracted out and that subcontractors will be forced to perform
these tasks off-site. Rather, the Agency was acknowledging that
construction employers would likely consolidate the responsibilities
for performing silica-generating tasks to as few workers as possible in
order to limit exposures to peripheral workers.
    As mentioned previously, the ``time-motion studies'' performed by
James Hardie, compiled in an unpublished reference, were not provided
for public inspection. Moreover, the description of how those data were
used in developing the model suggests that Mr. Soyka's relevant
assumptions are not based on time-motion studies of how long it
actually takes to perform specific tasks with controls added. Rather,
it appears that Mr. Soyka assumed inflated times to perform the tasks,
based on a misunderstanding of what the proposed rule required; in any
case, it is not descriptive of the requirements for the final rule. Mr.
Soyka's suggested approach contrasts with the estimates provided by
CISC/Environomics, which accepted the limitations of the analytical
exercise and agreed with most of the estimates in the PEA regarding the
``variable'' productivity effect.
    Moreover, it should be noted that aside from weighing the possible
competing forces on productivity in the course of a shift (e.g., more
time for set up vs. less time required for clean-up), there is also a
short-run/long-run phenomenon over a longer period as the standard
comes into use. There may be a short learning curve until workers
determine the most efficient way to perform a job when controls are
introduced (Document ID 3581, p. 1700); in some cases the effect may be
relatively larger until the method of performing a job is
reconceptualized. Mr. Sokya criticizes OSHA for not recognizing ``the
dynamic nature of construction'' (Document ID 2322, Appendix G, p. 19),
but one obvious aspect of the dynamic nature of construction is that
employers will be constantly adapting to changing circumstances and
trying to find ways to

perform the job in the most cost-effective manner. In short, the Agency
believes that a time-motion study of a particular task is neither
necessary to determine approximately what the effect will be in the
short-run, nor would it allow OSHA to determine what the long-run cost
of integrating the controls will be.
    CISC and its consultant Environomics, as well as some other
commenters, questioned OSHA's productivity-loss estimates associated
with the required controls. CISC/Environomics claimed that overall OSHA
``underestimated productivity losses associated with performing tasks
using the prescribed controls by an amount roughly equal to the average
equipment intensity of about 42 percent'' (Document ID 2320, p. 29).
CISC/Environomics reported that this underestimation came largely from
OSHA failing to account for what they termed ``fixed productivity
impacts'' and for productivity impacts to equipment. Both of these
concerns are discussed below.
    In its post-hearing brief, CISC/Environomics presented the results
from a questionnaire and interviews conducted with employers and
knowledgeable tradespeople; the results included a finding that ``the
variable penalty percentages [. . .] were the same as or slightly
larger than those that OSHA had estimated'' (Document ID 4217, p. 92).
CISC/Environomics did not submit the questionnaire or the answers
received, nor the details of the interviews, to the record so OSHA
could not fully evaluate the findings or compare them to its own
findings. Based on the available summary information it appears that,
while CISC and OSHA's estimates for variable productivity costs were
nearly identical, it is not clear that CISC's estimates took current
compliance into account. CISC stated that its members felt that
``something greater than zero variable productivity penalty should be
estimated for masons using portable saws controlled with wet methods [.
. .] and for heavy equipment operations using enclosed cabs and HEPA
filters'' (Document ID 4217, pp. 92-93). OSHA acknowledges that there
would be a productivity impact to comply with the requirements of the
silica rule relative to using no controls for those activities.
However, as shown in Chapter III of the FEA, Industry Profile, OSHA has
found high levels of baseline compliance with the provisions of the
rule for those activities. As is standard in OSHA's costing
methodology, only costs above and beyond those incurred under current
standards are attributable to the final rule.
    In addition, CISC argued that OSHA should take higher productivity
impacts because ``in some fraction of these instances [(where controls
would be required)], the controls are hellaciously difficult to use''
(Document ID 3580, Tr. 1321). The testimony goes on to give examples of
such difficulties such as when ``building houses where the utilities
are not yet in and the water is not yet in,'' when working in places
where power is not readily available such as in parking garages or on
scaffolding, and when doing work that requires wet methods outdoors in
extremely cold temperatures (Document ID 3580, Tr. 1321-1322). A
different commenter, the National Utility Contractors Association,
similarly criticized OSHA's estimates for excluding additional water-
transportation costs: ``there is not always a water supply available
which would require trucking large volumes of water to the job site
which adds additional costs.'' (Document ID 3729, p.3)
    Given the fact that the majority of the silica-generating equipment
requiring controls under this standard--such as tuckpointing grinders
and concrete drilling equipment--require electricity, OSHA does not
find merit in applying any productivity impact simply because the
controls for those tools may also need electricity. If the employer can
find a way to power the equipment, it can also power the controls when
necessary. Similarly, employers must commonly transport water to
worksites without it for cleanup and sanitation purposes, and OSHA's
technological feasibility analysis explains why the amount of water
required to generate the spray mist is not typically very significant.
Although it seems plausible that wet methods would occasionally be used
outdoors by some employers in weather cold enough to freeze the water
mist used to control the silica dust, this is far from a common
construction occurrence. Moreover, it is not entirely clear from the
record that freezing mist would decrease productivity. OSHA's estimates
of productivity impacts is intended to represent an average across all
situations, and the tiny fraction of time wet methods will need to be
used outdoors in extremely cold weather should not skew the average
productivity impact.
    CISC/Environomics stated that there should also be a productivity
impact on equipment rental or use as well as for the additional labor
to operate that equipment longer. Environomics reported that a complete
cost estimate of productivity loss would include not only the
additional labor time required, but also the cost of having to rent
equipment for a longer period of time.

    . . . Simply put, a productivity penalty for labor will
translate to a productivity penalty for equipment. For example, if
due to a labor productivity loss, the labor time required to
complete a job increases from eight hours to eight hours and 15
minutes, the equipment time required for job completion will also
increase to eight hours and 15 minutes. Additional equipment rental
costs will be incurred for the additional 15 minutes, or equipment
owned by the employer will be delayed for use on another job by 15
minutes (Document ID 2320, p. 29).

    This concern was reiterated both in its hearing testimony (Document
ID 3580, Tr.1323) and in its post-hearing brief where Environomics
stated that ``OSHA's analysis should add an equipment component to the
costs associated with whatever productivity penalty is incurred in
performing a construction task using the Table 1 controls'' (Document
ID 4217, p. 91). OSHA agrees, in part, and recognizes that there can be
a productivity impact for equipment (as well as for labor) for many
tasks when there is a cost created by having to extend the rental time
of the equipment.
    In the PEA, OSHA had estimated the labor productivity impacts
associated with engineering controls to reduce silica exposure. For the
FEA, the Agency has added a parallel cost for the equipment portion of
the cost for a number of equipment categories. These are itemized in
Table V-34 of the FEA. For example, for Task 15 (Demolition of concrete
slabs, mesh-reinforcing, up to 3''deep), there is estimated to be a 2
percent labor increase related to maintaining wet methods for dust
suppression. In the original Means estimates, it was estimated that
approximately 70 percent of the costs of the task were labor-related,
divided between an operator and a laborer. This 2 percent additional
cost is estimated to amount to $9.39 in added labor cost for an
equipment operator and $7.84 for a laborer, or a total labor
productivity cost per job of $17.23. For the FEA, OSHA is adding an
additional cost item of $7.58 to reflect an opportunity cost, in the
form of a prospective extended equipment rental cost, raising the total
incremental estimated cost to $24.81 per task. As with the other
construction engineering control costs, this additional cost item is
task-specific.
    While OSHA judged that equipment productivity can be impacted
negatively by the new rule for many tasks, there are two general
categories for which the Agency determined that there would be

no impact on equipment productivity. The first broad category is short-
term, intermittent work in which the equipment and control are often
idle. An example would be a plumber drilling holes in concrete. The
equipment and control are sufficiently inexpensive (relatively
speaking) that the construction employer or trade contractor (or
possibly even the tradesperson) would typically own rather than rent
the equipment and control. As discussed elsewhere in the FEA, OSHA
determined that certain tradespersons, such as plumbers, electricians,
and their helpers, are more likely to purchase their equipment, rather
than renting it. OSHA estimated the cost of purchasing control
equipment at twice the rental cost.
    The second category of tasks for which the Agency did not assess
any equipment productivity impact is the group of tasks in which there
is not a fixed ratio of labor to capital (capital in this case
including rental costs). For example, as explained in the following
unit cost discussion, Task 10 (as detailed in Table V-34 of the FEA)
involves performing earthmoving as a heavy equipment operation task. In
this case, while extra time by a laborer would be required to tend to
the application of wet methods, such application would be done
simultaneously with actually performing the earth-moving task. Thus,
while wet methods for Task 10 would require an added labor cost
(itemized as a ``productivity'' cost), it would not actually slow down
the operation so as to require the longer period of use of the
equipment that would impose an equipment impact.
    CISC/Environomics also argued that part of the productivity effect
was fixed and would therefore need to be accounted for separately. This
fixed component, CISC/Environomics reported, would be ``typically
involving activities such as initial set-up and final take-down and
clean-up of the control equipment, [which] often occur at the beginning
and end of a job or work shift'' (Document ID 4217, p. 90, see also
2320, p. 28; 3580, Tr. 1320). This would mean that shorter jobs would
have a relatively larger percentage loss in productivity.
    Other commenters did not agree that there would be costs related to
set up. During the hearings, Deven Johnson, of the Operative
Plasterers' and Cement Masons' International Association, testified
that the concrete grinding ``tools that are on the market today come
integral with the capture device[. . .] The hose is attached to the
grinder already. The electrical cord is attached to the motor already.
[. . .] You simply plug it in and start using it [. . .] there's no
setup time'' and that for ``a walk-behind concrete diamond-bladed saw
for cutting slabs, the setup time is, make sure there's gas in it and .
. . hook a water hose up to it and turn the water on'' (Document ID
3581, Tr. p. 1699). During the hearing, Manafort Brothers described a
wheel-based machine used to suppress dust during demolition operations,
which was simply wheeled onto the worksite and hooked up to a water
supply and electrical source (Document ID 3583, Tr. 2430), and the
Building Trades Construction Department (BCTD) of the AFL-CIO submitted
an extensive list of available tools that included the controls
required by the rule that would require little or no set up (Document
ID 4073, Attachment 4a).
    Based on the evidence in the record, OSHA determined that any time
needed to set up the engineering controls required by this rule is
adequately accounted for in the productivity impacts the Agency has
included, particularly in light of the fact that OSHA is not making any
adjustment to account for productivity improvements that are likely to
result from this rule (see the discussion of comments identifying
productivity improvements later in this section). Environomics'
inclusion of both a ``fixed'' productivity impact as well as a
``variable'' productivity impact, without recognizing offsetting
productivity benefits identified by other commenters', results ins a
significant overestimate of the productivity impact.
Public Comments Suggesting That OSHA had Overestimated the Productivity
Impacts Associated With Engineering Controls
    BCTD strongly disagreed with CISC's estimates about productivity
decreases resulting from the rule, stating in their post-hearing brief:

[a]ll that [CISC] offered to support these significant increases [in
the productivity impact] is an explanation of how its approach to
calculating productivity differs from OSHA's and a few examples,
such as:
    So in the case of the carpenters with the dust extraction
equipment on the drill and the HEPA vacuum, the carpenter takes a
little bit longer to do his hole-drilling task because he's got to
attach the equipment to the drill. He's got to attach the hose to
the HEPA vacuum. He's got to walk over before he drills and he's got
to turn on the HEPA vacuum. Then after he drills, he's got to turn
off the HEPA vacuum. He's got to periodically empty the HEPA vacuum.
He's got to worry about the vacuum hose from the drill to the vacuum
getting kinked and all that sort of thing. So the job takes a little
bit longer. Tr:1317-18.
    CISC offered no evidence that its analytical approach is more
accurate than OSHA's. Moreover, this description of how its
hypothetical carpenter would deploy control technology assumes the
employer would select the most cumbersome and inefficient technique
available, rather than taking advantage of the range of more
suitable and less costly tools that are readily available on the
market. See, e.g., Ex. 4073, Att.7a (ROI: hand-held drill with
integrated dust collection) (Document ID 4223, pp. 55-56).

    BCTD also took exception to the fact that ``CISC acknowledged that
`there may be a productivity net gain in terms of cleanup from using a
control,' Tr:1319 (Sessions), [but did] not appear to have taken
potential gains into consideration when estimating its lost
productivity cost'' (Document ID 4223 pp. 55).
    Dr. Ruth Ruttenberg highlighted the various areas where the PEA may
have overestimated the negative productivity effect of engineering
controls in construction. She stated that the assumption of a negative
impact on productivity

    . . . is yet another example of OSHA erring on the side of being
conservative in cost estimates. Despite the fact that some who were
interviewed suggested there could be a positive impact on
productivity, OSHA's PEA assessed anywhere from 0 percent to a 5
percent penalty in productivity loss as a result of OSHA compliance
with the proposed silica rule. (PEA, p. V-123-124) The impact of an
assumption of lost productivity can be profound, and OSHA
acknowledges this: ``. . . the magnitude of the productivity impacts
can substantially change the estimate of the overall cost increase
associated with controls'' (PEA, p. V-131).
    Despite the fact that OSHA leaves likely productivity increases
out of its calculations, it does point to opportunities to increase
productivity with dust control. [. . .]
    Limiting dust increases visibility for workers. (PEA, p. V-126)
Vacuum systems speed up drilling because continuous removal of drill
cuttings from the hole, reduce the need for workers to periodically
stop and clean. (PEA, p. V-128) And the list goes on. OSHA's cost
estimates are conservative, and high, when it comes to productivity
impact (Document ID 2256-A4, p. 7).
Productivity Improvements
    In addition to comment that the productivity loss due to this rule
would be minimal, OSHA also received considerable comment to the record
that the controls would improve productivity in a number of ways the
Agency had not factored in--for example by reducing clean-up time by
capturing dust at the source, improving worker comfort and morale, and
encouraging innovation.

Productivity Improvements--Reduced Clean-Up Time
    Testimony at the public hearings by the International Union of
Bricklayers and Allied Craftworkers on the experience by union members
with engineering controls suggested that use of controls may boost
productivity by reducing the amount of dust that needs to be cleaned up
during a given shift. The following is a hearing dialogue between Chris
Trahan of BCTD, and Sean Barrett of the International Union of
Bricklayers and Allied Craftworkers:

    MS. TRAHAN: [. . .] In your experience is there any productivity
gains or benefits that you can describe?
    MR. BARRETT: I can. These machines, when running correctly, when
[. . .] the vacs are regulated, the filters are running good. You
can run that machine until 3 o'clock in the afternoon, shut it off,
and go home. [. . .] If [the machine is] not [running correctly],
you constantly got to keep going back and cleaning up what you
already did. You're losing productivity. And over the course of [. .
.] a month you're talking 40 man-hours. You're talking a--paying a
guy for a week. It's--that's not the case at all [if dust controls
are functioning]. You would actually increase productivity by having
the right equipment there and not have people have to keep coming
back or jimmy-rig little things to try to get by. Just do it the way
it was designed, and you'll get a lot farther. . . . (Document ID
3585, Tr. 3055-3057).

    Deven Johnson of the Operative Plasterers' and Cement Masons'
International Association elaborated on the potential time savings of
some of the new engineering controls:

One of the other things that collecting the dust from these operations
on the front end does, it saves time on cleanup. Some of the industry
people have said that it's prohibitive to do that because it takes more
time to collect the dust. That's also not true. If you're collecting
the dust as it's generated and it's going into a HEPA-filtered
container, it's not being blown all over the job site, you don't need

    anybody else to clean it up (Document ID 3581, Tr. 1594).Walter
Jones of the Laborer's Health and Safety Fund testified that, for some
tasks, reducing or eliminating the need to clean up after a job can
dramatically increase productivity, in this case by one-third:

    We had the Bricklayers here a few days ago and they were talking
about their ability to work till 3:00, because they did not have to
clean up. Instead, when they use non-dust controlling or capturing
devices, they would have to stop right after lunch in order to begin
cleaning up. So we're looking at adding a few more hours to the
workday. So to me, in my mind, they're way more productive (Document
ID 3589, Tr. 4246).

    Joel Guth, President of iQ Power Tools and a mason contractor,
testified that he had been able to document the savings in clean-up
time.

    In certain industries we've been able to measure the time
savings from cleaning up the silica dust [. . .] It saves them one
to two to three hours a day in cleanup time because they don't have
to wash down the house or wash the windows or wash the bushes where
they're inherently dry cutting (Document ID 3585, Tr. 2981).

    Scott Schneider, CIH, Director of Occupational Safety and Health.
Laborer's Health and Safety Fund of North America, discussed how
engineering controls contribute to a more productive workplace:

    When you control the dust and you don't have--you're not
breathing it into your lungs, but you're also not spraying it all
over the construction site, all over the sidewalk, and you have to
clean it up, there's a lot of other costs involved in not
controlling. So I think we're going to realize those benefits by
implementing the standard (Document ID 3589, Tr. 4277).
Productivity Improvements--Improved Worker Comfort
    OSHA also heard a good deal of testimony suggesting that
productivity will be improved through the use of engineering controls
due to improving the working conditions for workers.
    Mr. James Schultz of Wisconsin Coalition of Occupational Safety and
Health described the physiological and practical benefits of
introducing or enhancing engineering controls:

    I think if you would work in the work environment that was less
dust or hopefully dust free, it would definitely increase the amount
of productivity just because so much of the time you're spending
wiping the dust off your brow because it's falling into your eyes or
something like that. Even if you have the respirator, it still
interferes with your vision and things like that. So a cleaner
environment would definitely be more productive just because [. .
.], you spend less time trying to think about how you can protect
yourself from this hazard, and I know myself, after working in the
place for many years, I've started to have breathing problems and so
if you can eliminate those breathing problems, if you can breathe
freely, you're also going to be much more productive because you're
not going to stop because you have [to] wheeze or go stand outside
to get some fresh air for awhile or those types of things (Document
ID 3586, Tr. 3253-3254).

    Deven Johnson, mentioned previously, testified about the human
effect of controlling silica as well:

    Another thing is, an individual who is working in an environment
where [. . .] he or she is constantly bombarded with concrete dust
all day long, your productivity drops as you get more and more
miserable as the day goes on. Commonsense would dictate, if you're
not blasting me in the face with dust and sand and silica for eight
hours a day, that I'm going to feel physically better and I'm not
going to be as tired and exhausted and pissed off as I normally
would be at the end of the day. Your productivity goes up[. . .].
(Document ID 3581, Tr. 1594-1595).

    Mr. Javier Garcia Hernandez, from National Council for Occupational
Safety and Health/Equality State Policy Center/Laborsafe, testified on
the cognitive factors that affect productivity, and why engineering
controls should aid productivity:

    . . . as a construction worker, I highly believe that we're more
productive when we are protected[. . . .]. We spend less energy
focusing on how to protect ourselves. Just imagine you're working in
a roomful of dust and you're just trying to either close your eyes
or cover your mouth so the less you breathe. So you're constantly
thinking about how to breathe less dust but if you have the
respirator or the wet, the controlled area, whether it is water or
respiratory protection, you're much more productive because our mind
is less occupied in how to protect ourselves and we spend that time
that we would have spent protecting ourselves working (Document ID
3586, Tr. 3248-49).

    Todd Ward, a bricklayer, testified that workers have some awareness
of the hazards of dry cutting blocks and that

    . . . when [workers] on the job [are] dry cutting they know--it
affects morale as well when they know [. . .] they have some
safeguards and they're protecting their lungs. So there is an
increased productivity when you have a good morale then on the job
(Document ID 3585, Tr. 3057).
Productivity Improvements--Innovation
    OSHA received comments on the fact that OSHA standards often lead
to innovation.
    The Laborers' Health and Safety Fund of North America pointed out
that ``[j]ust about every OSHA standard has had a look-back that has
shown [that] industry has innovated to meet the new standard'' and
continued, saying that ``[w]e believe a new OSHA standard with a lower
PEL will spur innovation in the construction industry to meet the
challenge'' (Document ID 3589, pp. 4183-4184).
    Charles Gordon observed that ``reality is that the new technology
will increase productivity faster, so that the actual costs will be
much less than predicted'' (Document ID 3855, Tr. 3815).
Conclusions Regarding Productivity Impacts
    In summary, while some commenters have asserted that OSHA has
underestimated the productivity penalties of using engineering controls
in construction, other evidence in the record suggests that the
aggregate net

productivity effect of implementing engineering controls could either
be neutral, or possibly positive. In the absence of detailed
quantitative data on these various potentially offsetting effects, OSHA
has conservatively chosen to retain its percentage estimates from the
PEA, while adding some additional productivity impacts that will
increase not only labor costs but also equipment costs.
    There is one exception: OSHA has removed the productivity impact
that it had included in the PEA for drywall installers. As explained in
the unit cost discussion, the Agency has determined from the record
that there is no economic reason why drywall installers would now use
silica-based drywall installation--the U.S. market has shifted entirely
to a silica-free compound (Document ID 2287, p. 38; 2296, Attachment 1,
p. 30; 1335, pp. 3-4, 7, 10). Therefore, there is no longer a logical
basis for a assigning a productivity loss to workers performing this
task.
    Table VII-12 summarizes the labor productivity estimates. As
discussed previously, while empirical quantitative data are quite
limited on productivity, it is possible to gauge the relative
productivity impacts across the principal control options. For example,
OSHA judged that there are no productivity impacts for certain
controls, such as mobile crushing machines. On the other hand, OSHA
found that the controls required for tuckpointers and grinders may
result in additional time being spent setting up and maintaining
controls over the course of a workday. In Table V-34 of the FEA,
productivity impacts, or ``lost production time,'' are shown by task
and are factors in OSHA's estimate of incremental cost per day.
    As discussed, OSHA has retained most of its original estimates of
the productivity effects from the PEA. In some cases, however, Table 1,
which forms the basis for the equipment categories listed in Table VII-
12, was changed from the PEA in response to comment. (see Methods of
Compliance in this preamble for further discussion on the changes to
Table 1). In other cases, OSHA received clarification on the manner of
exposure and added elements to Table VII-12, but did not adjust the
productivity impact. For example, OSHA received very specific comments
on tasks involving portable masonry saws used to cut fiber cement
materials (e.g., ``Hardie board''), and this is reflected in specific
descriptions in Table 1 and in Table VII-12, but the estimated
productivity impact for ``masonry cutting using portable saws'' remains
the same. Similarly, the Table 1 task that included ``heavy equipment