SS_1218-0137 Excavations 4.15.2021 ROCIS File

Excavations (Design of Cave-In Protection Systems) (29 CFR part 1926, Subpart P)

OMB Control No. 1218-0137

April 30, 2021

SUPPORTING STATEMENT FOR

THE INFORMATION COLLECTION REQUIREMENTS OF

THE STANDARD ON EXCAVATIONS

(DESIGN OF CAVE-IN PROTECTION SYSTEMS)

(29 CFR PART 1926, SUBPART P)¹

OFFICE OF MANAGEMENT AND BUDGET (OMB)

CONTROL NUMBER 1218-0137 (April 2021)

This ICR is requesting the extension of a currently approved data collection.

1. JUSTIFICATION

1. Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection. Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the collection of information.

Congress declared the purpose of the Occupational Safety and Health Act (OSH Act) was to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651). The OSH Act listed numerous ways of attaining its goals. One was “[to authorize] the Secretary of Labor [“Secretary”] to set mandatory occupational safety and health standards …” and another was “[to provide] for the development and promulgation of [the] standards” (29 U.S.C. 651). In addition, the OSH Act specifies that “The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard…” (29 U.S.C. 655) and that “[e]ach employer shall make, keep and preserve, and make available to the Secretary ... such records ... as the Secretary ... may prescribe by regulation as necessary or appropriate for the enforcement of this Act ....” (29 U.S.C. 657).

Under the authority granted by the OSH Act, the Department of Labor’s Occupational Safety and Health Administration (“OSHA” or “the Agency”) published 29 CFR part 1926, subpart P (Excavations). Among its many sections, subpart P at §1926.651(b)(2) requires that, before digging, contractors request utility companies or owners to establish the location of underground utilities on the contractors’ jobsites. Additionally, the standard requires that “[each] worker in an excavation [must] be protected from cave-ins by an adequate protective system […]” (§1926.652(a)). Section 1926.652 contains several additional sections that describe protective systems. Sections 1926.652(b), (c), and (d), Design of sloping and benching systems, Design of supports systems, shield systems, and other protective systems, and Materials and equipment, respectively, provide methods for protecting workers as required in §1926.652(a). Some of the methods contain paperwork requirements that impose burden hour costs on employers as specified by the Paperwork Reduction Act of 1995 (PRA).

The 30-day FRN published as part of this request for clearance has a few figures that do not align with the figures used in this Supporting Statement. Please Note: The figures found in this Supporting Statement are final and accurate.

2. Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection.

Subpart P of 29 CFR part 1926 is comprised of §1926.650-.652 and appendices A-F. Section 1926.650 provides the scope, application and definitions applicable to the subpart. Section 1926.651 sets specific excavation requirements and §1926.652 provides requirements and options for using various protective systems. The appendices include: Soil Classification-(A); Sloping and Benching-(B); Timber Shoring for Trenches-(C); Aluminum Hydraulic Shoring for Trenches-(D); Alternatives to Timber Shoring-(E); and Selection of Protective Systems [a decision tree]-(F). Depending on the protective system option chosen by a contractor, some appended language becomes mandatory. Nevertheless, the temporarily mandatory language does not increase paperwork burden hours or costs because the standard language and appendices provides specifications needed to comply with the chosen option.

Section 1926.651(b)(2)² requires what is and has been a usual and customary practice or required by local codes for decades. For many decades, before any excavation begins, contractors have contacted local “One-Call Centers,” utilities, or owners to request that underground utility installation locations be marked on the surface of their worksite(s).

Section 1926.652(a)(1) generates no paperwork burden but requires that “[e]ach worker in an excavation shall be protected from cave-ins … in accordance with paragraph (b) or (c) of this section…” Sections 1926.652 (b) and (c) of the Standard provide options for employers which assists them to choose amongst required protective systems. Depending on jobsite conditions, employers must choose how to and must protect their workers from cave-ins during the excavation work. Protective systems include sloping the sides of an excavation, benching the soil away from the bottom of an excavation, or using a support system (like shoring), a shield system (like a trench box), or other protective systems. Section 1926.652(d) requires that a registered professional engineer, under certain circumstances, must approve damaged and repaired protective system components for return to service.

More specifically, §1926.652(b) specifies allowable criteria for sloping and benching protective systems in excavations. The section provides contractors with four sloping or benching options for protecting workers. Sections 1926.652(b)(1) and (2), Options 1 and 2, rely on soil classification in Appendix A and sloping/benching in Appendix B to protect workers in excavations that are 20 feet or less deep. Options 1 and 2 generate no burden hours and cost since the necessary compliance information is included in the Standard and appendices. Also, it is worth noting that there is no express requirement that options 1 and 2 be written, be maintained or be made available to the Secretary. Section 1926.652 (b) (3), Option 3, allows benching/sloping systems “…using other tabulated data….” and §1926.652(b)(4), Option 4, allows systems based on written designs with registered professional engineer approval. These last two options require a written form, document maintenance, and document retrieval for the Secretary. (§§1926.652(b)(3)(ii) and (iii) as well as (b)(4)(ii) and (iii)).

Section 1926.652(c) specifies allowable criteria for excavation “support systems, shield systems and other protective systems”. This section also provides four options and references the appendices for information that assists excavation contractors to select suitable systems for their projects. Option 1, §1926.652(c)(1), requires”[d]esign for timber shoring in trenches [to] be determined [according to appendices A, C, and D]. Option 2 in §1926.652(c)(2)(iii) requires that “[m]anufacturer’s specifications, recommendations, and limitations, and manufacturer’s approval to deviate from [them] shall be in written form.” Option 3, §1926.652(c)(3), allows the use of support, shield, or other protective systems based on “[…] other tabulated data.” Option 4,

§1926.652(c)(4), Option 4, allows the use of such systems based on written designs with registered professional engineer approval. Options 2, 3, and 4 create burden hours and costs for being written, maintained, and retrieved. “At least one copy of each is to be stored on site during excavation and off site after for retrieval pursuant to the Secretary’s request” (§§1926.652(c)(2)(iii), (c)(3)(iii), and (c)(4)(iii)).

Section 1926.652(d)(3) requires that in certain circumstances damaged material or equipment used for protective systems must be “…removed from service, and [must] be evaluated and approved by a registered professional engineer before being returned to service.” There is no express requirement that the approval be written, maintained, or retrieved for the Secretary, but usually and customarily, the engineer will certify approval in writing. To be conservative, the Agency will take a small burden hour charge for requiring the approval.

While each excavation project is unique, most employers/contractors can use either Option 1 or 2 from §§1926.652(b) or (c) to design and use protective systems without deviating from manufacturers’ specifications, recommendations, and limitations. Option 2, paragraph (iii) of

§1926.652(c)(2), as well as Options 3 and 4 of both, sections 1926.652(b) and (c), affect the small percentage of construction sites that may have unique situations requiring protective system use that generates paperwork burdens. The circumstances include the project size, its configuration, its location and its environment (weather, vibration, water, previous use, etc., for example).

3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also, describe any consideration of using information technology to reduce burdens.

Employers may use improved information technology to establish and maintain the required records. The Agency wrote the paperwork requirements of the Standard in performance-oriented language, i.e., in terms of what data to collect, not how to record the data.

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use of the purpose described in item A.2. above.

The information collection requirements in the Standard are specific to each employer involved, and no other source or agency duplicates these requirements or can make the required information available to OSHA (i.e., the required information is available only from employers).

5. If the collection of information impacts small businesses or other small entities, describe any methods used to reduce the burden.

The information collection requirements specified by the Standard do not have a significant impact on a substantial number of small entities.

6. Describe the consequence to federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

Employers need to comply with each paperwork requirement specified by the Standard only once for each protective system constructed at a jobsite. Any reduction in frequency would eliminate the requirements entirely; thereby, jeopardizing the safety of workers who rely on properly constructed protective systems to prevent cave-ins during excavation work. The requirement also allows employers and OSHA compliance officers to assess if the selection and design of a protection system are appropriate to the excavation work.

7. Explain any special circumstances that would cause an information collection to be conducted in a manner:

• requiring respondents to report information to the agency more often than quarterly;

• requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;

• requiring respondents to submit more than an original and two copies of any document;

• requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records for more than three years;

• in connection with a statistical survey that is not designed to produce valid and reliable results that can be generalized to the universe of study;

• requiring the use of a statistical data classification that has not been reviewed and approved by OMB;

• that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

• requiring respondents to submit proprietary trade secret, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information's confidentiality to the extent permitted by law.

No special circumstances exist that require employers to collect information in the manner or using the procedures specified by this item.

8. If applicable, provide a copy and identify the data and page number of publication in the Federal Register of the agency’s notice, required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB. Summarize public comments receive in response to that notice and describe actions taken by the Agency in response to these comments received on cost and hour burden.

Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported. Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every 3 years – even if the collection of information activity is the same as in prior periods. There may be circumstances that may preclude consultation in specific situation. These circumstances should be explained.

Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every 3 years, even if the collection-of-information activity is the same as in prior periods. There may be circumstances that may preclude consultation in a specific situation. These circumstances should be explained.

As required by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 506(c)(2)(A)), OSHA published a notice in the Federal Register on October 21, 2020 (85 FR 67013) soliciting comments on its proposal to extend the Office of Management and Budget’s approval of the information collection requirements specified in the Standard on Excavations (Design of Cave-in Protection Systems) (29 CFR part 1926, subpart P), (Docket No. OSHA-2011-0057). This notice was part of a preclearance consultation program that provided interested parties the opportunity to comment on OSHA’s request for an extension by the Office of Management and Budget of a previous approval of the information collection requirement found in the above Standard. The Agency did not receive any comments in response to this notice.

 9. Explain any decision to provide any payment of gift to respondents, other than remuneration of contractors or grantees.

The Agency will not provide payments or gifts to the respondents.

10. Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

The paperwork requirements specified by the Standard do not involve confidential information.

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons form whom the information is requested, and any steps to be taken to obtain their consent.

The paperwork requirements specified by the Standard do not involve sensitive information.

12. Provide estimates of the hour burden of the collection of information. The statement should:

· Show the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour burden on respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burdens, and explain the reasons for the variance. General estimates should not include burden hours for customary and usual business practices.

· If this request for approval covers more than one form, provide separate hour burdens estimates for each form and aggregate the hour burden.

· Provide estimates of annualized cost to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories. The cost of contracting out or paying outside parties for information collection activities should not be included here. Instead, this cost should be included in Item 14.

Respondent Burden Hour and Cost Burden Determinations

In the previous supporting statement issued in October 2014, the Agency began its burden hour analysis with the following estimates of the total number of construction sites in 2013 from the “Dodge Construction Potentials Bulletin”:

--647,946 Residential Construction Sites

--120,332 Non-Residential Sites

--768,278 TOTAL CONSTRUCTION SITES

The Agency then described a methodology for taking this 2013 estimate of total construction sites and computing an estimate for total burden hours based on (1) data from construction trenching fatality investigations and (2) assumptions about burden hour requests based on the mix of residential versus non-residential construction sites.

For this revised burden statement, the Agency is using this same methodology updated with construction site estimates for 2014 through 2019. The Agency is also assuming that the relative mix of construction types (residential versus non-residential) has not changed appreciably in the last 6 years. The updated construction site estimate is summarized in the following table:

Updated Construction Estimates 2014-2019
Year	Residential Units	Non-Residential Units	Total
2014	647,172	130,583	777,755
2015	714,924	134,303	849,227
2016	768,710	144,447	913,157
2017	834,554	139,301	973,855
2018	867,349	136,315	1,003,664
2019	865,925	144,263	1,010,188

Source: Dodge Constructions Potentials Bulletin, update received September 14, 2020

Note: This is just an estimate provided by Dodge.

The following estimates are based on Agency staff experience and its analysis of Agency trench excavation fatality investigation data, as well as data available from McGraw Hill Dodge, and from the Bureau of Labor Statistics. OSHA’s data are most recently from 2014-2019 trench/excavation fatality case analyses. The analyses indicate that of the 180 investigations 113 cases or 63% were the result of soil collapses (113 cases of 180 equals 62.7%). The data further revealed that, of the 113 involving soil collapse, only 23 or 20.35% documented use of protective systems (23 ÷ 113 = 20.35%). Ninety (90) cases documented no use of protective systems. Of the remainder, some records indicated that protective systems were inapplicable or simply not discussed. Also, OSHA staff found, according to the September 2020 “Dodge Construction Potentials Bulletin” published by McGraw Hill, that there were 865,925 residential projects/sites contracted in 2019 (“513,000 One-Family, 134,000 Two-Family, and 218,925 Apartment Buildings” totaling 865,925 sites). Additionally, the Bulletin showed 144,263 non-residential construction projects were contracted in 2019.

The Agency assumes three propositions: First, most residential construction excavations are performed within the criteria set in §1926.652(b)(1) and (2) or in §1926.652(c)(1) and (2) without deviation from manufacturer specifications and; therefore, have no burden hour charge; Second, all the non-residential and apartment building construction captured by the Dodge data do require excavation work covered by 29 CFR part 1926, subpart P; and thirdly, by using the most recent Dodge data and the Agency’s excavation fatality case data analysis, OSHA has a more accurate understanding of excavation burden hours than using the relatively crude distinction between “residential” and “commercial” construction as done in the past.

For residential sites on average, the Agency estimates that all one and two family homes or 647,000 projects/sites would not require excavations deeper than 20 feet (513,000 One-Family plus 134,000 Two-Family = 647,000 sites). These sites would be excavated using §1926.652(b) Options 1 and 2 or §1926.652(c) Options 1 and 2 without deviating from manufacturers’ specifications, recommendations and limitations. Since these options rely on information available in the Standard and its appendices there is no associated burden. However, in the case of the 218,925 apartment buildings which are more like non-residential construction, the Agency accrues some burden.

Applying Agency percentages to Dodge data of apartment and non-residential construction sites produces an estimated 228,808 soil collapse sites [63% of (218,925 apartment sites plus 144,263 non-residential sites) produces 228,808-sites.]. Agency staff further estimates that 10% of the 228,808 sites would require use of §1926.652(b) Option 3 or 4 as well as §1926.652(c) Option 2 paragraph (iii), Option 3, or Option 4. Therefore 22,880.8 sites would require paperwork burden hour calculations (10% of 228,808 produces 22,880.8 site). The Agency further estimates that 25% of these 22,880.8 sites or 5,720.2 sites would require outside contracted professional engineering services while the majority 75% or 17,160.6 sites would be approved in-house.

Wage Rate Determinations

The Agency determined the wage rate from mean hourly wage earnings to represent the cost of employee time. For the relevant standard occupational classification category, OSHA used the wage rates reported in the Bureau of Labor Statistics, U.S. Department of Labor, Occupational Employment Statistics (OES), May 2019 [date accessed: February 23, 2021].³

To derive at the loaded hourly wage rate, the Agency used data from the Bureau of Labor Statistics’ (BLS) Occupational Employment Statistics (OES), as described in the paragraph above. Then, the Agency applied to the wage rate a fringe benefit markup based on the following BLS release: Employer Costs for Compensation news release text; released 10:00 AM (EDT), December 17, 2020 (https://www.bls.gov/news.release/archives/ecec_12172020.pdf). BLS reported that for private workers, fringe benefits accounted for 29.8 percent of total compensation and wages accounted for the remaining 70.2 percent. To calculate the loaded hourly wage for each occupation, the Agency divided the mean hourly wage rate by 1 minus the fringe benefits as shown in Table 1.

Table 1: WAGE HOUR ESTIMATES
Occupational Title	Standard Occupational Code	Mean Hour Wage Rate (A)	Fringe Benefits (B)	Loaded Hourly Wage Rate (C) = (A)/(1-B)
Civil Engineers (Professional Engineer)	17-2051	$45.36	.298	$64.62
Construction Laborers (Worker)	47-2061	$20.06	.298	$28.58

Non-Residential Burden and Wage Hour Costs

Based on staff familiarity with construction and conversations with knowledgeable industry representatives, OSHA estimated above that 22,880.8 sites would be required to create, store and retrieve paperwork under §§1926.652(b)(3) and (b)(4) as well as under §§1926.652(c)(2)(iii), (c)(3), and (c)(4).

The Agency estimates that for 17,160.6 of the 22,880 sites, an in-house registered professional engineer, earning $64.62 per hour, on average takes 2 hours to create, modify (deviate from manufacturers’ specifications), or to approve the required protective system designs or materials.

Burden hours: 17,160.6 projects/sites x 2 hours per design = 34,321.2 hours

Cost: 34,321.2 hours x $64.62 = $2,217,835.94

Also, the Agency estimates that on average, it would take a non-supervisory construction worker/laborer earning $28.58 per hour, 15 minutes (15/60 hour) on average to maintain, retrieve or remotely retrieve the required written designs.

Burden hours: 22,880.8 projects/sites x 15/60 hour = 5,720.2

Cost: 5,720.2 hours x $28.58 = $163,483.32

Therefore, the total annual burden hours and cost of this paperwork requirement is found in Table 2.

Table 2: Estimated Annualized Respondent Hour and Cost Burden
Information Collection Requirements	Type of Respondent	No. of Respondents	No. of Responses per Respondent	Total No. of Responses	Avg. Burden per Response (In Hrs.)	Total Burden Hours	Avg. Hourly Wage Rate	Total Burden Costs
§§1926.652(b)(3) and (b)(4), §§1926.652(c)(2)(iii), (c)(3), and (c)(4)	Employer (Professional Engineer)	17,160.6	1.0	17,160.6	2	34,321.2	$64.62	$2,217,835.94
	Employer (Worker)	22,880.8	1.0	22,880.8	15/60	5,720.2	$28.58	$163,483.32
Unduplicated Totals	--		--	40,041	--	40,041	--	$2,381,319

13. Provide an estimate of the total annual cost burden to respondents or recordkeepers resulting from the collection of information. (Do not include the cost of any hour burden shown in Items 12 and 14).

● The cost estimate should be split into two components: (a) a total capital and start-up cost component (annualized over its expected useful life); and (b) a total operation and maintenance and purchase of service component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information. Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life of capital equipment, the discount rate(s), and the time period over which costs will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.

● If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collection services should be a part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondent (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.

● Generally, estimates should not include purchases of equipment or services, or portions thereof, made: (1) prior to October 1, 1995, (2) to achieve regulatory compliance with requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government, or (4) as part of customary and usual business or private practices.

OSHA believes that one quarter (i.e., 5,720.2) of the 22,880.8 apartment and non-residential construction sites would require the use of outside contracted engineering services for the required protective system design, approval, etc. The hourly wage rate cost to employers for these engineering services is $64.62. In addition, the Agency estimates that the engineer will require 2 hours on average for this service. Therefore, the annual cost to employers for these engineering services at is:

Cost: 5,720.2 construction starts x 2 hours to develop each design x

$64.62 = $739,279

14. Provide estimates of annualized cost to the Federal government. Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information. Agencies also may aggregate cost estimates from Item 12, 13, and 14, in a single table.

There is no cost to the Federal Government

15. Explain the reasons for any program changes or adjustments.

An increase in the number of construction projects/sites from 768,278 in 2013 to 1,010,188 in 2019 has resulted in an adjustment increase in burden hours from 17,262 to 40,041, a total increase of 22,779 burden hours. The there was an increase in the number of apartment and non-residential construction sites that would use outside contractor engineering services for the required protective system design from 2,038 to 5,720.2. There was also a decrease in overall cost from $311,505 to $739,279, a difference of $427,774.

16. For collections of information whose results will be published, outline plans for tabulation, and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions.

The Agency will not publish the information collected under this standard.

17. If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate.

OSHA lists current valid control numbers in §§1910.8, 1915.8, 1917.4, 1918.4, and 1926.5 and publishes the expiration date in the Federal Register notice announcing OMB approval of the Information collection requirement (see 5 CFR 1320.3(f)(3). OSHA believes that this is the most appropriate and accurate mechanism to inform interested parties of these expiration dates.

18. Explain each exception to the certification statement.

The Agency is not seeking an exception to the certification statement.

B. COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS.

There are no collections of information employing statistical methods.

1 The purpose of this Supporting Statement analyzes and describes the burden hours and costs associated with provisions of this Standard that contain paperwork requirements; this Supporting Statement does not provide information or guidance on how to comply with, or how to enforce, the Standard.

2 Paragraph (b)(2) of §1926.651 (“Specific Excavation Requirements”) requires that “[u]tility companies or owners shall be contacted within established or customary local response times, advised of the proposed work, and asked to establish the location of the utility underground installations prior to the start of actual excavation…” Across the country excavation contractors are required to follow these steps by local custom or One-Call System call before you dig programs. The Agency considers this a long standing usual and customary business practice and, therefore, does not take burden for this provision under the PRA (see 5 CFR 1320.3(b)(2)).

3 OES data is available at https://www.bls.gov/oes/tables.htm. To access a wage rate, select the year “Occupational Profiles,” and the Standard Occupational Classification (SOC) Code.

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