[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)][Rules and Regulations][Pages 32110-32116]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12665]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket No. OSHA-2012-0025]
RIN 1218-AC75
Cranes and Derricks in Construction: Revising the Exemption for
Digger Derricks
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA published a direct final rule and a companion notice of
proposed rulemaking on November 9, 2012, to broaden the exemption for
digger derricks in its construction standard for cranes and derricks.
OSHA received a significant adverse comment on the direct final rule
during the comment period, and as a result, OSHA withdrew the direct
final rule on February 7, 2013. After considering this comment, OSHA is
issuing this final rule based on the notice of proposed rulemaking.
DATES: This final rule is effective on June 28, 2013.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), OSHA designates the
Associate Solicitor of Labor for Occupational Safety and Health as the
recipient of petitions for review of the final rule. Contact Joseph M.
Woodward, Associate Solicitor, at the Office of the Solicitor, Room S-
4004, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-5445.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications, Room N-3647, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-
1999.
Technical inquiries: Mr. Garvin Branch, Directorate of
Construction, Room N-3468, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-
2020; fax: (202) 693-1689.
Copies of this Federal Register notice and news releases: This
Federal Register notice, as well as news releases and other relevant
information, are available at OSHA's Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Discussion of the Digger-Derrick Exemption in 29 CFR 1926 Subpart
CC
A. Background
B. Comment on the Proposed Rule and Withdrawal of the Direct
Final Rule
C. Agency Decision To Issue a Final Rule
D. Revisions to the Text of the Exemption in 29 CFR
1926.1400(c)(4)
E. Discussion of Conforming Revisions to 29 CFR 1926 Subpart V
II. Agency Determinations
A. Significant Risk
B. Final Economic Analysis and Final Regulatory Flexibility
Analysis
C. Technological Feasibility
D. Paperwork Reduction Act of 1995
E. Federalism
F. State Plan States
G. Unfunded Mandates Reform Act
H. Consultation and Coordination With Indian Tribal Governments
List of Subjects in 29 CFR Part 1926
Authority and Signature
Amendments to Standards
I. Discussion of the Digger-Derrick Exemption in 29 CFR 1926 Subpart CC
A. Background
A digger derrick (also called a "radial boom derrick") is a
specialized type of equipment designed to install utility poles. A
digger derrick typically comes equipped with augers to drill holes for
the poles, and with a hydraulic boom to lift the poles and set them in
the holes. Employers also use the booms to lift objects other than
poles; accordingly, electric utilities, telecommunication companies,
and their contractors use booms both to place objects on utility poles
and for general lifting purposes at worksites (Docket ID: OSHA-2007-
0066-0139.1).
OSHA's current standard for Cranes and Derricks in Construction,
promulgated in 2010 as 29 CFR part 1926 subpart CC, covers digger
derricks, but includes a limited exemption for all pole work in the
electric-utility and telecommunications industries, including placing
utility poles in the ground and attaching transformers and other
equipment to the poles (see 29 CFR 1400(c)(4); 75 FR 47906, 47924-
47926, and 48136 (Aug. 9, 2010)). As explained in more detail in the
preamble to the proposed rule, OSHA developed its 2010 standard through
a negotiated rulemaking involving stakeholders from many affected
sectors. In its proposed rule based on the draft standard from the
stakeholders, OSHA included only a narrow exemption for digger derricks
used to dig holes. OSHA later expanded the exemption in the 2010 final
rule in response to commenters who complained that the proposed narrow
exemption did not include customary uses of the digger derrick that
involve placing a pole in the hole and attaching transformers and other
items to the pole (see 75 FR 47906, 47924-47926, and 48136 (Aug. 9,
2010)).
In the current digger-derrick exemption to subpart CC, OSHA
clarifies that employers engaged in exempted digger-derrick
construction activities must still comply with the applicable worker
protections in the OSHA standards governing electric-utility and
telecommunications work at Sec. 1910.268, Telecommunications, and
Sec. 1910.269, Electric power generation, transmission, and
distribution. Accordingly, exempt digger-derrick work subject to 29 CFR
part 1926 subpart V--Power Transmission and Distribution, must comply
with 29 CFR 1910.269, while digger derricks used in construction work
for telecommunication service (as defined at 29 CFR 1910.268(s)(40))
must comply with 29 CFR 1910.268. When digger-derrick activities are
exempt from subpart CC of 29 CFR part 1926, employers also must comply
with all other applicable construction standards, such as 29 CFR part
1926 subpart O--Motor Vehicles, Mechanized Equipment, and Marine
Operations, and subpart V.\1\
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\1\ For telecommunications work, compliance with the provisions
of Sec. 1910.268 is a condition of the exemption in Sec.
1926.400(c)(4). The scope limitations in Sec. 1910.268(a) (such as
the language stating that it does not apply to construction) are
irrelevant to application of the exemption. When an employer uses a
digger derrick for telecommunications construction work and does not
comply with the provisions in Sec. 1910.268, then that employer
fails to qualify for the exemption in Sec. 1926.400(c)(4). As a
result, that employer must comply with all of the requirements in
subpart CC of 29 CFR part 1926, including the operator-certification
requirements in Sec. 1926.1427. When the employer fails to comply
with subpart CC, and cannot demonstrate that it complied with Sec.
1910.268 for telecommunications work, or Sec. 1910.269 for
electric-utility work, then OSHA will cite the employer under
subpart CC (not Sec. Sec. 1910.268 or 1910.269). When the employer
demonstrates that it is complying with the exemption in subpart CC,
but is not complying with the separate requirements in 29 CFR part
1926 subpart O, applicable to all motorized vehicles in
construction, then OSHA will cite the employer under subpart O. Note
that this explanation does not mean that OSHA is restricting its
enforcement discretion on whether to issue citations at all.
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On October 6, 2010, Edison Electrical Institute (EEI) petitioned
for review of the Cranes and Derricks in Construction standard in the
U.S. Court of Appeals for the District of Columbia. During subsequent
discussions with OSHA, EEI provided new information to OSHA regarding
the use of digger derricks in the electric-utility industry, and the
impact on utilities' operations of the current digger-derrick exemption
in subpart CC. According to EEI, the exemption from subpart CC covers
roughly 95 percent of work conducted by digger derricks in the
electric-utility industry (see OSHA-2012-0025-0004: EEI Dec. 7, 2010,
letter, page 2). The majority of work under the remaining 5 percent is
work closely related to the exempted work (Id.). For example, when
electric utilities use digger derricks to perform construction work
involving pole installations, the same digger-derrick crew that
performs the pole work typically installs pad-mount transformers on the
ground as part of the same power system as the poles. While the pole
work is exempt under 29 CFR 1926.1400(c)(4), the placement of the pad-
mount transformers on the ground is not.
On November 9, 2012, OSHA published a direct final rule and a
companion proposed rule to broaden the digger-derrick exemption in
subpart CC to exempt the placement of pad-mount transformers (77 FR
67313 and 67270 (Nov. 9, 2012)). In these documents, OSHA concluded
that, compared to currently exempted pole work, most (if not all) of
the remaining 5 percent of work is at least as safe (77 FR 67315 and
67272). Weight measurements provided by EEI demonstrate that
transformers placed on a pad on the ground are roughly the same weight
as, or in some cases lighter than, the weight of the transformers
lifted onto the poles or the poles themselves (see OSHA-2012-0025-0003:
EEI handout, "Typical Weights" chart).\2\ In addition, OSHA explained
that electric utilities typically place distribution transformers in a
right of way along front property lines, close to a roadway, or along
rear property lines, irrespective of whether the transformers are pole
mounted or pad mounted (77 FR 67315 and 67272). In these cases, the
lifting radius of a digger derrick placing a transformer on a pad is
similar to the lifting radius of a digger derrick placing a transformer
on a pole (Id.). Consequently, the lifting forces on a digger derrick
should be approximately the same regardless of whether the transformer
is pole mounted or pad mounted (see, e.g., OSHA-2012-0025-0003).
Finally, OSHA noted that the approximate height of the transformer
relative to the employee installing the transformer is the same for the
two types of transformers (Id.). An employee installing a pad-mounted
transformer is on the ground, near the pad, whereas an employee
installing a pole-mounted transformer is either on the pole, or in an
aerial lift, near the mounting point for the transformer. In either
case, the transformer would be near the same height as the employee.
OSHA received no comments challenging these statements.
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\2\ OSHA noted that EEI's chart does not show weights for
concrete and plastic transformer pads, and EEI did not indicate that
utilities use digger derricks to place these pads (77 FR 67315 and
67272). When utilities use digger derricks to lift these pads, EEI's
presentation indicates that the digger derricks lift the
transformers separately. Because the surface area of these pads is
comparable to the transformers on them, and because these pads are
generally only a few hundred millimeters thick, OSHA stated its
belief that the pads did not weigh any more than transformers or
poles (Id.). OSHA received no comments indicating that these
assumptions were invalid.
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OSHA also noted EEI's concerns about how the limited exemption
failed to produce a significant economic savings for the electric-
utility industry. Because the same workers generally perform both types
of work, utility employers would, when the standard becomes fully
effective in November 2014, incur the cost of meeting all of the
other requirements in subpart CC, including the operator-certification
requirements, for those workers who perform the 5 percent of work not
currently exempted from subpart CC. OSHA noted that compliance with the
entire standard could result in a sizable cost to the electric-utility
industry (about $21.6 million annually) for an activity that does not
appear significantly more dangerous than the type of activity that OSHA
already exempts, and that OSHA did not consider this result when it
promulgated the 2010 standard (77 FR 67315 and 67272) (see Section
IV.B. in this preamble for a summary of these costs). OSHA did not
receive any comments disputing this economic impact.
OSHA also notes that the largest labor organization for workers in
the electric-utility industry, the International Brotherhood of
Electrical Workers, participated in the settlement discussions and
corroborated the general validity of the information provided by EEI,
actively supported EEI's request for an expanded digger-derrick
exemption, and did not submit any objections to the proposed expansion
of the digger-derrick exemption.
B. Comment on the Proposed Rule and Withdrawal of the Direct Final Rule
OSHA received only one comment on the direct final rule published
on November 9, 2012 ; the comment was from a "safety professional and
certified industrial hygienist in safety management" (see Docket ID:
OSHA-2012-0025-0008). OSHA previously explained in the direct final
rule and the companion proposed rule for this rulemaking that it would
treat a comment on either the direct final rule or the notice of
proposed rulemaking as comment on both documents. The Agency stated
further that it would withdraw the direct final rule and determine
whether it should proceed with the proposed rule if it received a
significant adverse comment (77 FR 67314 and 67271).
OSHA explained that a "significant adverse comment" is one that
"explains why the amendments to OSHA's digger-derrick exemption would
be inappropriate," and that withdrawal of the direct final rule would
be necessary if the comment "raises an issue serious enough to warrant
a substantive response in a notice-and-comment process" (Id.). OSHA
determined that the comment met that test. As a result, OSHA published
a withdrawal of the direct final rule on February 7, 2013 (78 FR 8985).
In the withdrawal notice, OSHA stated that it would address the comment
in a follow-on final rule based on the companion notice of proposed
rulemaking. OSHA hereby addresses the significant adverse comment
received as a comment on the proposed rule, and issues this final rule
based on the November 9, 2012 notice of proposed rulemaking.
The comment addresses a single issue in the proposed rule. The
commenter expressed concern that the exemption for digger derricks
decreased worker safety by exempting riggers and signal persons working
with digger derricks from the specific qualification, training, and
testing requirements contained in subpart CC. Accordingly, the
commenter urged OSHA to further revise its proposed amendments to
"include the elements of rigger and signal person qualification,
training and testing requirements for excluded workers" (see Docket
ID: OSHA-2012-0025-0008). Specifically, the commenter requested that
OSHA amend its proposed conforming amendments to 29 CFR 1926.952, which
establish the protections that apply to all electric-utility digger-
derrick activities exempted from subpart CC, to include the
requirements for rigger and signal person qualification, training, and
testing found currently in subpart CC.
The comment does not persuade OSHA that a revision to the proposed
rule is necessary or appropriate. OSHA notes that the commenter did not
acknowledge that the majority of digger derrick activity in the
electric-utility industry already is exempt from the subpart CC
requirements he addresses. The commenter did not distinguish the 5
percent of digger-derrick activity proposed for exemption by this
rulemaking from the 95 percent of work performed by digger derricks
currently exempted from the rigger and signal person qualifications in
subpart CC. Therefore, the commenter appears to be requesting action
outside the scope of this rulemaking (i.e., addressing all digger-
derrick work, not just the 5 percent of work proposed for exemption by
this rulemaking). Additionally, the commenter did not indicate that EEI
was mistaken in its estimate that 95 percent of the digger-derrick work
in its industry was already exempt from subpart CC; the commenter also
did not assert that the dangers posed by the 5 percent of work within
the scope of this rulemaking are greater than the dangers present in
the 95 percent of digger-derrick work already exempted. Moreover, the
commenter did not indicate whether a rigger or signal person would
typically be necessary to perform the 5 percent of work addressed in
this rulemaking.
In addressing his recommended revisions, the commenter discussed
data he assembled on seven digger-derrick incidents between 2001 and
2011. The commenter asserted broadly that the presence of signal
persons and riggers would have prevented these incidents, but did not
support this assertion with respect to any of the specific incidents.
When OSHA examined these incidents, it determined that none of them
involved placing pad-mount transformers on the ground or any other type
of work exempted by this rulemaking.
If OSHA retained the qualification, training, and testing
requirements from subpart CC for the 5 percent of utility work subject
to this rulemaking, it would be imposing unwarranted costs on employers
and perpetuating the problem that EEI identified when it requested the
expanded exemption. Under this approach, 95 percent of utility work
would remain exempt from these requirements, while 5 percent of this
work would not be exempt; nevertheless, utility employers would incur
the full cost of meeting all of the qualification, training, and
testing requirements in subpart CC for signal persons and riggers to
assist with 5 percent of the work. More importantly, employers would
incur these costs even though there is no evidence that the dangers
present in the 5 percent of the work are greater than those presented
in the 95 percent of digger-derrick work already exempted.
In addition, although the commenter expressed concern about the
absence of subpart CC qualification, training, and testing requirements
for exempt digger-derrick activities, OSHA notes that any digger-
derrick activity exempted from subpart CC will still be subject to the
training requirements and other requirements in subpart V. Subpart V
addresses the hazards present in electric-utility work, particularly
the hazards of electrocution raised by the commenter. In at least
several of the incidents cited by the commenter, it appears that
compliance with existing OSHA standards would have prevented the
injury.
In summary, OSHA finds that there is no evidence that the dangers
present in the 5 percent of the work are greater than the hazards
present in the 95 percent of digger-derrick work already exempted from
subpart CC. Moreover, OSHA's analysis indicates that the incidents
cited by the commenter did not involve work exempted by this final
rule. In addition, there is no evidence that the subpart CC training
and qualification requirements recommended by the commenter would have
prevented those incidents.
C. Agency Decision To Issue a Final Rule
Based on the rulemaking record as a whole, OSHA concludes that it
is appropriate to proceed with the proposed rule and remove the burdens
imposed on employers by the remaining 5 percent of non-exempt work.
Therefore, OSHA is expanding the digger-derrick exemption to include
all digger derricks used in construction work subject to 29 CFR part
1926 subpart V. Based on its estimates in the Final Economic Analysis
provided in the 2010 final rule, the Agency determines that expanding
the exemption for digger derricks will enable employers in NAICS 221120
(Electric Power Generation) to avoid compliance costs of about $15.9
million per year, while employers in NAICS 221110 (Electric Power
Transmission, Control, and Distribution) will avoid compliance costs of
about $5.7 million per year, for a total cost savings of about $21.6
million annually.
When the Agency promulgated the final Cranes and Derricks in
Construction rule, OSHA's primary concern about extending the digger-
derrick exemption beyond pole work was that such action would provide
employers with an incentive to use digger derricks on construction
sites to perform construction tasks normally handled by cranes--tasks
that are beyond the original design capabilities of a digger derrick.
In discussing this concern, OSHA stated, "[T]he general lifting work
done at those other worksites would be subject to this standard if done
by other types of lifting equipment, and the same standards should
apply as apply to that equipment . . . ." (75 FR 47925). OSHA
acknowledges that revising the exemption would extend the digger-
derrick exemption to include some work at substations. However, EEI
indicated that employers in the electric-utility industry limit such
uses to assembly or arrangement of substation components, and that
these employers use other types of cranes instead of digger derricks to
perform lifting and installation work at substations (see OSHA-2012-
0025-0005: Jan. 2011 EEI letter). If OSHA finds that employers are
using digger derricks increasingly for other tasks, the Agency may
revisit this issue and adjust the exemption accordingly.
D. Revisions to the Text of the Exemption in 29 CFR 1926.1400(c)(4)
OSHA is revising the exemption in existing 29 CFR 1926.1400(c)(4)
to include within the exemption the phrase "any other work subject to
subpart V of 29 CFR part 1926" as proposed. This revision expands the
exemption to remove from coverage under subpart CC of 29 CFR part 1926
the types of non-pole, digger-derrick work described by EEI. The Agency
also is making several minor clarifications to the text of the
exemption. First, OSHA is replacing "and" with "or" in the phrase
"poles carrying electric or telecommunication lines" (emphasis
added). This revision will ensure that the regulated community does not
misconstrue the exemption as limited to poles that carry both electric
and telecommunications lines. This clarification is consistent with
OSHA's explanation in the preamble of the final Cranes and Derricks in
Construction rule (see 75 FR 47925).
Second, OSHA is adding the phrase "to be eligible for this
exclusion" at the beginning of the sentence requiring compliance with
subpart V of 29 CFR part 1926 and Sec. 1910.268. This revision limits
the exemption to the use of digger derricks that comply with the
requirements in subpart V or Sec. 1910.268. If an employer uses a
digger derrick for subpart V or telecommunications work without
complying with all of the requirements in subpart V or Sec. 1910.268,
then the work is not exempt and the employer must comply with all of
the requirements of subpart CC of 29 CFR part 1926. This clarification
is consistent with OSHA's explanation of the exemption in the preamble
of the final rule (see 75 FR 47925-47926).
Third, in Sec. 1926.1400(c)(4) of this final rule, OSHA is
replacing the reference to Sec. 1910.269 with a reference to subpart
V. This revision is not substantive in that electric-utility employers
having activities that fall within the digger-derrick exemption
currently must comply with subpart V because the exempt activity is
subpart V work, and they also must comply currently with Sec. 1910.269
because subpart V requires them to do so (see 29 CFR 1926.952(c)(2)).
By replacing the reference to Sec. 1910.269 in the Sec.
1926.1400(c)(4) exemption with a reference to subpart V, OSHA is
removing any implication that these employers need only comply with
Sec. 1910.269 and not with all subpart V requirements, including
subpart O requirements for motorized vehicles.
E. Discussion of Conforming Revisions to 29 CFR 1926 Subpart V
As part of the harmonizing process mentioned in the previous
section, OSHA in this final rule also is revising Sec. 1926.952(c)(2)
in subpart V, which requires compliance with Sec. 1910.269 for all
digger-derrick work exempted from subpart CC, including compliance with
Sec. Sec. 1910.269(p), Mechanical equipment, 1910.269(a)(2), Training,
and 1910.269(l), Working on or near exposed energized parts. When OSHA
promulgated subpart CC of 29 CFR 1926 in 2010, the Agency also revised
Sec. 1926.952(c)(2) (75 FR 48135). This revision mirrored the
terminology in the digger-derrick exemption at Sec. 1926.1400(c)(4),
and required employers using digger derricks so exempted to comply with
Sec. 1910.269. In making this revision, the Agency explained that it
revised Sec. 1926.952(c) to require digger derricks to comply with
Sec. 1910.269 to provide "comparable safety requirements" (Id.).
OSHA is revising Sec. 1926.952(c)(2) in this final rule so that it
continues to mirror the updated terminology in the digger-derrick
exemption at Sec. 1926.1400(c)(4). As part of the revision to Sec.
1926.952(c)(2), OSHA is clarifying that the requirement to comply with
Sec. 1910.269 is in addition to, not in place of, the general
requirement in Sec. 1926.952(c) that all equipment (including digger
derricks) must comply with subpart O of 29 CFR part 1926.
II. Agency Determinations
A. Significant Risk
The purpose of the Occupational Safety and Health Act of 1970 (OSH
Act; 29 U.S.C. 651 et al.) is "to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources" (29 U.S.C. 651(b)). To
achieve this goal, Congress authorized the Secretary of Labor to
promulgate and enforce occupational safety and health standards (29
U.S.C. 654(b), 655(b)). An occupational safety or health standard is a
standard that "requires conditions, or the adoption or use of one or
more practices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe or healthful employment and
places of employment" (29 U.S.C. 652(8)). A standard is reasonably
necessary or appropriate within the meaning of Section 652(8) when it
substantially reduces or eliminates significant risk (see Industrial
Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607
(1980)).
This final rule does not impose any additional requirements on
employers. It, therefore, does not require an additional significant
risk finding (see Edison Electric Institute v. OSHA, 849 F.2d 611, 620
(DC Cir. 1988)). Moreover, for the reasons explained above, OSHA
believes that adopting the proposed rule will not adversely affect
safety.
B. Final Economic Analysis and Final Regulatory Flexibility Act
Analysis
When it issued the final rule for Cranes and Derricks in
Construction in 2010, OSHA prepared a Final Economic Analysis (FEA) as
required by the Occupational Safety and Health Act of 1970 ("OSH
Act"; 29 U.S.C. 651 et seq.) and Executive Orders 12866 (58 FR 51735
(Sept. 30, 1993) and 13563 (76 FR 3821 (Jan. 21, 2011)). OSHA also
published a final regulatory flexibility analysis as required by the
Regulatory Flexibility Act (5 U.S.C. 601-612).
In the FEA for the 2010 final rule (OSHA-2007-0066-0422), the
Agency estimated that there were about 10,000 crane operators in NAICS
221110 (Electric Power Generation), and about 20,000 crane operators in
NAICS 221120 (Electric Power Transmission, Control, and Distribution).
OSHA based these figures on estimates of the number of construction
work crews in these industries from its subpart V Preliminary Economic
Analysis, with an allowance (to assure maximum flexibility) that there
be three trained crane operators for every work crew (see 75 FR 48084).
Based on submissions to the record, OSHA estimated that 85 percent of
these 30,000 operators (25,500) worked on digger derricks, while 15
percent of the operators operated truck-mounted cranes, or boom trucks;
therefore, a total of 25,500 digger-derrick operators would require
operator certification (Id.).
In its FEA for the 2010 final rule, OSHA estimated that the annual
total costs for NAICS 221110 would be $6.7 million ($4 million for
operator certification), and the annual total costs for NAICS 221120
would be $18.7 million ($8.7 million for operator certification) (see
FEA Table B-9 at 77 FR 48103). Fully exempting digger derricks from the
scope of the standard also eliminates costs for other activities
besides operator certification, such as inspections and power-line
safety. In the 2010 FEA, the two main cost components for an industry
were the number of crane operators and the number of jobs involving
cranes. That FEA estimated that digger derricks represented 85 percent
of operators, and 85 percent of jobs involving cranes. OSHA, therefore,
estimates that digger derricks account for 85 percent of the costs
attributed to NAICS 221110 and NAICS 221120. Applying this 85 percent
factor to the total costs for the industries yields costs for digger
derricks of $5.7 million per year in NAICS 221110 and $15.9 million per
year in NAICS 221120, for a total of $21.6 million per year.\3\
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\3\ Based on the size of digger derricks and EEI's descriptions
of digger-derrick activities, OSHA understands that the vast
majority of digger-derrick use for construction activity in the
electric-utility industry will involve transmission and distribution
work subject to subpart V of 29 CFR part 1926. Employers categorized
under NAICS 221120 generally conduct electric-transmission and
electric-distribution work. However, OSHA is including digger
derricks under NAICS 221110, which is the SIC code for power
generation, because some employers may be under that SIC code when
their primary work is in that area, but those employers also may
engage in transmission work covered by subpart V. Because the record
does not indicate that employers use digger derricks for power-
generation construction activities, OSHA assumes that the use of
digger derricks under NAICS 221110 is for subpart V work. OSHA
included this identical explanation in the preamble to the proposed
rule, and received no comments challenging this assumption.
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This final rule will eliminate nearly all of the estimated $21.6
million per year in costs associated with digger derricks. These
estimated cost savings may be slightly overstated because OSHA noted in
its 2010 FEA that the cost assumptions might not represent the most
efficient way to meet the requirements of the rule. However, OSHA
wanted to assure the regulated community that, even with somewhat
overstated cost estimates, the rule would still be economically
feasible.
At the same time, it does not appear that there will be any
significant reduction in benefits from the subpart CC rule. In its 2010
FEA (OSHA-2007-0066-0422), OSHA reported an average of 0.5 crane-
related fatalities per year in SIC codes NAICS 221110 and NAICS 221120.
However, the 2010 FEA did not indicate that any of these fatalities
involved digger derricks or other equipment covered by the standard.
Moreover, in light of the information provided by EEI, there is no
indication that the additional 5 percent of digger-derrick activity
exempted through this rulemaking poses any hazard greater than the
hazard posed by the digger-derrick activities already exempted in the
2010 final rule.
Because this rule estimates cost savings of $21.6 million per year,
this rule is not economically significant within the meaning of
Executive Order 12866. The rule does not impose additional costs on any
private-sector or public-sector entity, and does not meet any of the
criteria for an economically significant or major rule specified by
Executive Order 12866 and the relevant statutes. This rule is not a
"major rule" under Section 804 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.).
OSHA developed this rule consistent with the provisions of
Executive Orders 12866 and 13563. Accordingly, this rule follows
closely the principle of EO 13563 that agencies should use new data
developed after completion of a rulemaking (retrospective analysis) to
determine if a regulation "should be modified, streamlined, expanded,
or repealed." In this case, review of data submitted after completion
of the initial rulemaking provided OSHA with the opportunity to
streamline a rule by dropping its application to all digger derricks
used in the electric-utility industry, thereby saving the industry an
estimated $21.6 million per year. As described previously, this action
removes duties and costs for the electric-utility industry, and does
not impose any new duties on any employer. Because this final rule will
reduce costs for small entities, the Agency certifies that the final
standard will not impose significant economic costs on a substantial
number of small entities.
OSHA included a similar economic analysis and certification in the
preamble of the proposed rule and did not receive any comments
challenging that analysis or the certification. The one comment that
OSHA received, described earlier in this preamble, suggested that there
might be additional net savings if OSHA revised the exemption to retain
qualification, training, and testing requirements for signal persons
and riggers, but the comment did not dispute OSHA's analysis of the
cost reductions associated with the exemption as proposed. For the
reasons explained previously, OSHA determined that it would not revise
the exemption as requested by the commenter.
C. Technological Feasibility
A standard is technologically feasible when the protective measures
it requires already exist, when available technology can bring the
protective measures into existence, or when that technology is
reasonably likely to develop (see American Textile Mfrs. Institute v.
OSHA, 452 U.S. 490, 513 (1981); American Iron and Steel Institute v.
OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)). This rule does not require
any additional protective measures. In the 2010 FEA, OSHA found the
standard to be technologically feasible (75 FR 48079). OSHA concludes
that this revision is feasible as well because it reduces or removes current
requirements on employers. OSHA also reiterated that finding in the preamble
of the proposed rule for this rulemaking, and did not receive any
comment on that finding.
D. Paperwork Reduction Act of 1995
When OSHA issued the final rule on August 9, 2010, the Agency
submitted an Information Collection Request (ICR) to the Office of
Management and Budget (OMB) titled Cranes and Derricks in Construction
(29 CFR Part 1926 Subpart CC). On November 1, 2010, OMB approved the
ICR under OMB Control Number 1218-0261, with an expiration date of
November 30, 2013. Subsequently, in December 2010, OSHA discontinued
the Cranes and Derricks Standard for Construction (29 CFR 1926.550) ICR
(OMB Control Number 1218-0113) because the new ICR superseded that ICR.
In addition, OSHA retitled the new ICR to Cranes and Derricks in
Construction (29 CFR Part 1926, Subpart CC and Subpart DD).
This rule, which expands the digger-derrick exemption, does not
require any additional collection of information or alter the
substantive requirements detailed in the 2010 ICR. The only impact on
the collection of information will be a reduction in the number of
entities collecting information. OMB did not require OSHA to submit a
new proposed ICR when OSHA issued the proposed rule, and OSHA does not
believe it is necessary to submit a new ICR to OMB now. OSHA will
identify any reduction in burden hours when it renews the ICR. OSHA
requested comment on this approach in the proposed rulemaking
describing the digger-derrick exemption, but received none.
OSHA notes that a federal agency cannot conduct or sponsor a
collection of information unless it is approved by OMB under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., and the agency
also displays a currently valid OMB control number for the collection
of information; the public need not respond to a collection of
information requirement unless the agency displays a currently valid
OMB control number. Also, notwithstanding any other provisions of law,
no person shall be subject to a penalty for failing to comply with a
collection of information requirement if the requirement does not
display a currently valid OMB control number.
E. Federalism
OSHA reviewed this final rule in accordance with the Executive
Order on Federalism (Executive Order 13132 (64 FR 43255 (Aug. 10,
1999))), which requires that federal agencies, to the extent possible,
refrain from limiting state policy options, consult with states prior
to taking any actions that would restrict state policy options, and
take such actions only when clear constitutional authority exists and
the problem is national in scope. Executive Order 13132 provides for
preemption of state law only with the expressed consent of Congress.
Federal agencies must limit any such preemption to the extent possible.
Under Section 18 of the OSH Act (29 U.S.C. 667), Congress expressly
provides that states may adopt, with federal approval, a plan for the
development and enforcement of occupational safety and health
standards. OSHA refers to states that obtain federal approval for such
a plan as "State Plan States." Occupational safety and health
standards developed by State Plan States must be at least as effective
in providing safe and healthful employment and places of employment as
the federal standards. Subject to these requirements, State Plan States
are free to develop and enforce under state law their own requirements
for safety and health standards.
OSHA concluded in 2010 that its promulgation of subpart CC complies
with Executive Order 13132 (75 FR 48128 and 48129). Because the current
rulemaking does not impose any additional burdens, that analysis
applies to this revision of the digger-derrick exemption. Therefore,
this final rule complies with Executive Order 13132. In states without
OSHA-approved state plans, any standard developed from this rule will
impact state policy options in the same manner as every standard
promulgated by OSHA. In State Plan States, this rulemaking does not
limit state policy options.
F. State Plan States
When federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, the 27 states and U.S. territories
with their own OSHA-approved occupational safety and health plans must
amend their standards to reflect the new standard or amendment, or show
OSHA why such action is unnecessary, e.g., because an existing state
standard covering this area is at least as effective in protecting
employees as the new federal standard or amendment (29 CFR 1953.5(a)).
The state standard must be at least as effective in protecting
employees as the final federal rule. State Plan States must issue the
standard within six months of the promulgation date of the final
federal rule. When OSHA promulgates a new standard or amendment that
does not impose additional or more stringent requirements than an
existing standard, State Plan States need not amend their standards,
although OSHA may encourage them to do so. The 27 states and U.S.
territories with OSHA-approved occupational safety and health plans
are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky,
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina,
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,
Virginia, Washington, and Wyoming. Connecticut, Illinois, New Jersey,
New York, and the Virgin Islands have OSHA-approved State Plans that
apply to state and local government employees only.
The amendments made in this rule do not impose any new requirements
on employers. Accordingly, State Plan States need not amend their
standards to incorporate the expanded exemption specified in this rule,
but they may do so if they so choose.
G. Unfunded Mandates Reform Act
When OSHA issued the 2010 final rule for Cranes and Derricks in
Construction, it reviewed the rule according to the Unfunded Mandates
Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive Order
13132. OSHA concluded that the final rule did not meet the definition
of a "Federal intergovernmental mandate" under the UMRA (75 FR
48130). OSHA's standards do not apply to state or local governments
except in states that have voluntarily adopted state plans. OSHA
further noted that the rule imposed costs of over $100 million per year
on the private sector and, therefore, required review under the UMRA
for those costs; the Agency determined that its Final Economic Analysis
met that requirement (Id).
As discussed above in Section II.B. of this preamble, this rule
reduces expenditures by private-sector employers. For the purposes of
the UMRA, OSHA certifies that this rule does not mandate that state,
local, or tribal governments adopt new, unfunded regulatory
obligations, or increase expenditures by the private sector of more
than $100 million in any year. OSHA included an identical certification
in the preamble of the proposed rule, and received no comment
challenging that certification.
H. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this rule in accordance with Executive Order 13175
(65 FR 67249 (Nov. 9, 2000)), and determined that it does not have
"tribal implications" as defined in that order. This rule does not
have substantial direct effects on one or more Indian tribes, on the
relationship between the federal government and Indian tribes, or on
the distribution of power and responsibilities between the federal
government and Indian tribes.
List of Subjects in 29 CFR Part 1926
Cranes and derricks, Construction industry, Electric power,
Occupational safety and health.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC 20210, authorized the preparation
of this notice. OSHA is issuing this final rule under the following
authorities: 29 U.S.C. 653, 655, 657; 40 U.S.C. 3701 et seq.; 5 U.S.C.
553; Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012);
and 29 CFR part 1911.
Signed at Washington, DC, on May 22, 2013.
David Michaels
Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this rule, OSHA amends 29
CFR part 1926 as follows:
PART 1926--[AMENDED]
Subpart V--Power Transmission and Distribution
0
1. Revise the authority citation for subpart V to read as follows:
Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; Secretary
of Labor's Order Nos. 12-71 (36 FR 8754); 8-76 (41 FR 25059); 9-83
(48 FR 35736), 1-90 (55 FR 9033), 5-2007 (72 FR 31159), or 1-2012
(77 FR 3912), as applicable. Section 1926.951 also is issued under
29 CFR part 1911.
0
2. Amend Sec. 1926.952 by revising paragraph (c)(2) to read as
follows:
Sec. 1926.952 Mechanical equipment.
* * * * *
(c) * * *
(2) Use of digger derricks must comply with Sec. 1910.269 (in
addition to 29 CFR part 1926, subpart O) whenever 29 CFR part 1926,
subpart CC, excludes such use in accordance with Sec. 1926.1400(c)(4).
* * * * *
Subpart CC--Cranes and Derricks in Construction
0
3. Revise the authority citation for subpart CC to read as follows:
Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and
Secretary of Labor's Order No. 5-2007 (72 FR 31159) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.
0
4. Amend Sec. 1926.1400 by revising paragraph (c)(4) to read as
follows:
Sec. 1926.1400 Scope.
* * * * *
(c) * * *
(4) Digger derricks when used for augering holes for poles carrying
electric or telecommunication lines, placing and removing the poles,
and for handling associated materials for installation on, or removal
from, the poles, or when used for any other work subject to subpart V
of this part. To be eligible for this exclusion, digger-derrick use in
work subject to subpart V of this part must comply with all of the
provisions of that subpart, and digger-derrick use in construction work
for telecommunication service (as defined at Sec. 1910.268(s)(40))
must comply with all of the provisions of Sec. 1910.268.
* * * * *
[FR Doc. 2013-12665 Filed 5-28-13; 8:45 am]
BILLING CODE 4510-26-P
