August 23, Dear Sir/Madam:

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1 OSHA Docket Office Technical Data Center, Room N-2625 Occupational Safety and Health Administration U.S. Department of Labor 200 Constitution Avenue, NW Washington, D.C RE: Docket No. OSHA Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems); 29 C.F.R et. seq. Dear Sir/Madam: The National Association of Mutual Insurance Companies ( NAMIC ) is pleased to offer comments on proposed revisions to the walking-working surfaces standards and personal protective equipment standards. (29 CFR Part 1910) 1 NAMIC is the largest and most diverse national property/casualty insurance trade and political advocacy association in the United States. Its 1,400 member companies write all lines of property/casualty insurance business and include small, single-state, regional, and national carriers accounting for 50 percent of the automobile/ homeowners market and 31 percent of the business insurance market. NAMIC has been advocating for a strong and vibrant insurance industry since its inception in NAMIC appreciates the opportunity to offer comments on the proposed standards and their application to inspection activities, including those conducted by the property- 1 Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems); Proposed Rule, 75 Federal Register 99 (May 24, 2010), pp

2 Comments of the National Association of Mutual Insurance Companies Page 2 casualty insurance industry. The proposed rule incorporates modifications to the fall protection requirements. The application of the proposed rule is critical for our member companies as they fulfill their obligations to policyholders and claimants. Background Congress enacted the Occupational Safety and Health Act ( OSH Act ) in 1970, which authorized the Secretary of Labor to adopt occupational safety and health standards. 2 Subpart D - Walking-Working Surfaces - of the Occupational Safety and Health Standards (29 C.F.R et. seq.) was subsequently adopted in 1971 pursuant to Section 6(a) of the OSH Act. Separate standards applicable to general industry, shipyards and construction were developed. Subpart I - Personal Protective Equipment standards, like Subpart D, were adopted by OSHA under Section 6(a) of the Act. Attempts to revise and update the standards have been undertaken several times over the past 40 years, including proposed revisions in 1973 and In 1990 OSHA proposed revisions to Subparts D and I intended to remove ambiguities, and combine existing provisions. At that time OSHA proposed adding new requirements to Subpart I to set performance and use criteria for fall protection equipment. Subpart D included duty requirements for personal fall protection systems and the criteria for the systems were included in Subpart I. In 2003 OSHA reopened the rulemaking record and republished the 1990 proposal. The May 2010 proposed rule, the subject of these comments, replaces the 1990 proposals. (55 FR 13360) In separate action, in 1994, OSHA issued final regulations for Safety Standards for Fall Protection in the Construction Industry. 3 Subpart M of the final rule renamed the subpart Fall Protection and consolidated most requirements for fall protection in the revised subpart. In developing the regulations OSHA recognized the unique needs and circumstances related to inspections and investigations and included an exemption for these activities. Specifically, the 1994 final rules included language that [T]he provisions of this subpart do not apply when employees are making an inspection, investigation, or assessment of workplace conditions prior to the actual start of construction work or after all construction work has been completed. (Section (a)(1)) OSHA reasoned that employees engaged in such activities are 2 The Occupational Safety and Health Act; 84 Stat.1590; 29 USC 651 et. seq. 3 Safety Standards for Fall Protection in the Construction Industry; Final Rule, 59 Federal Register (August 9, 1994).

3 Comments of the National Association of Mutual Insurance Companies Page 3 exposed to fall hazards only for a short period of time, are focused on their footing and aware of hazards associated with falling, and that installation of safety equipment would expose an employee to a falling hazard for a longer period than the inspection. Proposed Rule On May 24, 2010, OSHA issued a Notice of Proposed Rule on Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems). The proposed rule would eliminate duplication and specification of requirements, while emphasizing performance-based criteria. The proposed rule would add new criteria for fall protection equipment under Subpart I to make general industry requirements consistent with construction industry standards. Under the proposed rule Subpart D would contain requirements for fall protection and Subpart I would provide criteria for proper use on personal fall protection systems. The proposed rule would apply to employees walking on working surfaces including floors, stairs, steps, roofs, ladders, ramps, runways, aisles, and step bolts. (29132) In general employers would be required to provide employees with one of five methods of fall protection: Guard rail systems; Designated areas; Safety net systems; Travel restraint systems; or Personal fall arrest systems NAMIC supports OSHA s goal of increased consistency between construction, maritime, and general industry standards; however, it is imperative to the efficient and effective function of property-casualty insurance operations that an appropriate fall protection exception for inspections, investigations and assessments be included in the final rule. Impact on the Property/Casualty Insurance Industry The nation s property/casualty industry is at the forefront of efforts to increase workplace safety. The industry works closely with policyholders on loss mitigation and worker safety programs and holds itself to the highest standards with respect to its own employees. The insurance industry prides itself on policyholder and claimant service. Upon receipt of a claim, members companies initiate the claims process and ascertain the covered damage. Adhering to the highest quality standards, the insurance industry employs well trained and experienced adjusters. These individuals physically inspect property

4 Comments of the National Association of Mutual Insurance Companies Page 4 damage to investigate the cause of damage and assess the type and scope of repairs necessary. In many instances the damage is to roofs or other elevated surfaces. To properly inspect and investigate the situation, adjusters sometimes climb onto a roof or other elevated surface to assess damage, including fire, hail, wind or other natural or man-made events. In general an initial inspection to assess the damage, estimate the scope of work and determine if emergency measures are necessary to prevent further damage will be conducted prior to the commencement of any construction activities. Subsequent inspections may be conducted during the construction process to access the progress of construction and ensure that activities are being conducted properly. A final inspection post construction may be conducted to ensure proper completion and close the claim. Application of the fall protection standard to insurance industry inspectors and adjusters would be infeasible, impose unreasonable burdens and ironically exposure workers to greater exposure to falls. The insurance industry s professional adjusters access roofs or other elevated areas for brief periods of time solely in connection with inspection and investigation activities. Until such inspections are undertaken it would be impossible to determine designated areas and/or mark potential hazards. In addition, the properties inspected are not under the control of the insurance company, but rather are owned and operated by policyholder or claimants. As such, installation of fall protection systems would be impractical and impose an unreasonable burden on insurers attempting to fulfill their contractual duty to adjudicate claims. Installing guardrails, safety nets, tensile lines or other structural barriers would be infeasible and risk additional damage to the structure. More importantly, the installation of such devices would require exposure to a fall hazard for a greater period than the inspection, often require more elevated work than the inspection itself, and would result in greater risk to the adjuster. The work of insurance inspectors and adjusters is consistent with the existing Section (a)(1) exemption and the rationale for the exemption is as true today as in 1994 when adopted by OSHA. Specifically, the work of adjusters and inspectors falls squarely within the scope of inspection, investigation, or assessment of workplace conditions. These employees engage solely in activities related to the inspection and assessment of damaged property and they do not engage in construction activities. Their activities are limited to the inspection of areas to determine the extent and type of damage, the nature of work to be performed to repair the damage and/or to inspect the completed work. OSHA acknowledged the fundamental difference in these activities and construction activities in the 1994 rule.

5 Comments of the National Association of Mutual Insurance Companies Page 5 Unlike employees engaged in actual construction activities, inspectors and adjusters are exposed to falling hazards for only short periods of time. During those infrequent times when they are exposed to such hazards they are acutely aware of their surroundings and potential hazards. In addition, insurers utilize processes and methods of inspection designed to minimize risk that are well recognized within the insurance industry as a safe means of performing the work. Consistent with the logic adopted by OSHA in the 1994 rules, since insurance inspectors and adjusters are exposed to fall hazards for only short periods of time and employ tested and recognized safety protocols, their activities should be excluded from the scope of the proposed rule. Additionally, there is potential confusion whether the act of inspecting damaged property or post construction inspections constitute a construction activity subject to the Construction Industry Standards under 29 CFR (a)(1), or whether these inspection activities would instead be subject to the General Industry Standards under 29 CFR , et. seq. As such, OSHA s goal of harmonization and consistency would be furthered by specific inclusion of the inspection and investigation exemption and incorporation of the stated rationale in the final rule. NAMIC specifically requests that the proposed rule be amended at 29 CFR (a) to include the language of 29 CFR (a)(1) as follows: Exception: The provisions of Subpart D do not apply when employees are making an inspection, investigation, or assessment of workplace conditions prior to the actual start of construction work or after all construction work has been completed. Conclusion The 1994 rationale for the insurance and inspection exception remains today. Subjecting inspectors and adjusters to fall protection standards would be overly burdensome and infeasible and would subject employees to fall hazard for greater periods of time. Incorporation of specific exemption language in Subpart D is consistent with prior regulations, reflects the realities of insurance inspection and claims adjustment operations and would eliminate any potential confusion related to the definition of construction activities.

6 Comments of the National Association of Mutual Insurance Companies Page 6 NAMIC looks forward to working with OSHA throughout the regulatory process and would appreciate the opportunity to participate in future hearings on the proposed rule to discuss the impact on insurance company claims adjustment processes. Sincerely, National Association of Mutual Insurance Companies 122 C Street, N.W. Suite 540 Washington, D.C