[Federal Register: March 29, 2007 (Volume 72, Number 60)][Proposed Rules] [Page 14727-14728]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr07-23]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[New Docket No. OSHA--2007-0012, Old Docket No. S-204A]
RIN 1218-AC02
Notice of Availability of the Regulatory Flexibility Act Review
of the Occupational Safety Standard for Excavations
AGENCY: Occupational Safety and Health Administration, Department of
Labor.
ACTION: Notice of availability.
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SUMMARY: The Occupational Safety and Health Administration (OSHA) has
completed a review of its Excavations Standard pursuant to section 610
of the Regulatory Flexibility Act and section 5 of Executive Order
12866 on Regulatory Planning and Review. In 1989, OSHA issued a final,
revised Excavations Standard to reduce deaths and injuries from
excavation and trenching activities in the construction industry. This
regulatory review concludes that the 1989 Excavations Standard has
reduced deaths from approximately 90 to 70 per year while real
construction activity has increased by 20%. The review also concludes
that the Standard has not had a negative impact on small business, that
the cost of control technology has been reduced, that the Standard is
understandable and does not conflict with other rules, and that
commenters agree that the Standard should be retained. Based on this
review, OSHA concludes that the Excavations Standard should remain in
effect, but OSHA will issue some improved guidance and training
materials, based on commenters suggestions.
ADDRESSES: Copies of the entire report may be obtained from the OSHA
Publication Office, Room N-3101, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone (202) 693-1888; Fax (202) 693-2498. The
full report, comments, and referenced documents are available for
review at the OSHA Docket Office, New Docket No. OSHA-2007-0012, Old
Docket No. S-204A, Room N-2625, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone (202) 693-2350 (OSHA's TTY number is
(877) 889-5627). OSHA's Docket Office hours of operation are 8:15 a.m.
to 4:45 p.m., e.t. The main text of the report, this Federal Register
Notice and any news releases will become available at the OSHA Webpage
at http://www.OSHA.gov. Electronic copies of this Federal Register
Document, the full text of the report, comments and referenced
documents are or will become available at http://www.regulations.gov
FOR FURTHER INFORMATION CONTACT: General information: Joanna Dizikes
Friedrich, OSHA Directorate of Evaluation and Analysis, Room N-3641,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-1939. Technical inquiries about the
Excavations Standard: Garvin Branch, OSHA, Directorate of Construction,
Room N-3468, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone (202) 693-2020. Press inquiries: Elaine
Fraser, OSHA Office of Communications, N-3637, 200 Constitution Avenue,
NW., Washington DC 20210; telephone (202) 693-1999.
SUPPLEMENTARY INFORMATION: The Occupational Safety and Health
Administration (OSHA) has completed a "lookback" review of its
Excavations Standard, 29 CFR part 1926, Subpart P, Sec. Sec. 1926.650
to 1926.652 and Appendices A to F, titled "Regulatory Review of 29 CFR
part 1926, Subpart P: Excavations, March 2007" ("Regulatory
Review"). This Federal Register document announces the availability of
the Regulatory Review and briefly summarizes it.
The Regulatory Review was undertaken pursuant to and meets the
requirements of section 610 of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) and section 5 of Executive Order 12866 (59 FR 51739, Oct
4, 1993). The purpose of a review under section 610 of the Regulatory
Flexibility Act is to determine whether a rule should be continued
without change, or should be amended or rescinded, consistent with the
stated objectives of applicable statutes to minimize any significant
impact of the rule on a substantial number of small entities. In making
this determination, the Agency considers the following factors:
(1) The continued need for the rule;
(2) The nature of complaints or comments received concerning the
rule from the public;
(3) The complexity of the rule;
(4) The extent to which the rule overlaps, duplicates or conflicts
with other Federal rules; and to the extent feasible, with state and
local governmental rules; and
(5) The length of time since the rule has been evaluated and the
degree to which technology, economic conditions, or other factors have
changed in the areas affected by the rule.
Under section 5 of Executive Order 12866, agencies examine whether
rules have become unjustified or unnecessary as a result of changed
circumstances, whether they are both compatible with other rules and
not duplicative or inappropriately burdensome in the aggregate, whether
they are consistent with the President's priorities and the principles
set forth in the Executive Order, within applicable law, and whether
their effectiveness can be improved.
On October 31, 1989, OSHA issued a final, revised Standard for
excavation and trenching, at 54 FR 45894. The revision updated the
previous standard by simplifying many of the existing provisions,
adding and clarifying definitions, eliminating duplicate provisions and
ambiguous language, and giving employers added flexibility in providing
protection for employees. In addition, the Standard provided several
new appendices. One appendix provided a consistent method of soil
classification. Others provided sloping and benching requirements,
pictorial examples of shoring and shielding devices, timber tables,
hydraulic shoring tables and section charts that provide a graphic
summary of the requirements contained in the Standard.
On August 21, 2002, OSHA published a Federal Register document
requesting public comments on the Excavations Standard and,
specifically, on all issues raised by section 610 of the RFA and
section 5 of Executive Order 12866 (67 FR 54103). The Regulatory Review
summarizes the public comments and responds to them, and makes the
following major findings:
There is a continued need for the Standard. The annual
number of trenching and excavation fatalities has declined from an
estimated 90 fatalities per year prior to the enactment of the 1989
Standard, to approximately 70 per year since 1990.
This 22% reduction is even more impressive given the 20% real
increase in construction activity over this period. Therefore, in
relation to increased construction activity, fatalities have been
reduced by more than 40%. Although the Standard has improved safety, it
remains needed in light of the ongoing occurrence of related
fatalities, most of which result from violations of the Standard. OSHA
intends to expand outreach and maintain enforcement to further reduce
fatalities.
The Standard does not impose an unnecessary or
disproportionate burden on small business or on industry in general.
The cost of protective systems has decreased by 10 percent in real
dollars between 1990 and 2001. The number of small businesses engaged
in excavation activity has increased, and the percentage of excavation
work done by small business has increased. Real construction activity
has increased.
There is no indication that employers are unable to comply
due to the complexity of the revised Standard. Nonetheless, public
comments suggested some ways in which the Standard might be simplified
or clarified (although some argued that any changes would only serve to
confuse and discourage those who now understand and follow the
Standard). The expanded outreach will address these matters.
In general, the Standard does not overlap, duplicate, or
conflict with other state or Federal rules. Several commenters,
however, identified a possible conflict between the Excavations
Standard and OSHA's standard for confined spaces. OSHA will address
this issue in its future rulemaking for confined spaces in
construction.
Economic and technological trends have not reduced the
need for the Standard. However, the development of so-called
"trenchless" technologies (e.g., directional boring machines) has
added a new dimension to excavation work (including additional hazards)
that OSHA will monitor.
Public comments contained some specific suggestions for
how the Standard could be made more effective, although the comments
were divided as to whether or not the Standard should be modified. In
light of the effectiveness of the Standard, the certainty it has
created, and limited regulatory resources, major modifications are not
of high priority.
The National Transportation Safety Board (NSTB)
recommended that OSHA amend the Excavations Standard to require
employers to notify appropriate authorities after excavation activities
create a gas leak or leak of other hazardous substances. Since then,
the "Pipeline Inspection, Protection, Enforcement, and Safety Act
(PIPES) of 2006" has been enacted. Section 2 of PIPES requires all
persons (including employers) engaged in demolition, excavation,
tunneling, or construction to immediately call 911 if: (1) They damage
a pipeline that may endanger life or cause serious bodily harm or
damage to property; and (2) such damage results in the escape of
flammable, toxic, or corrosive gas or liquid. OSHA will monitor the
implementation of PIPES and consider whether amending the Excavations
Standard as suggested by NTSB is necessary and appropriate.
The Standard remains consistent with the President's
priorities to the extent that it has produced the intended benefits, a
reduction in trenching and excavation fatalities and injuries, while
not causing negative economic effects.
Based on the findings of this review, OSHA finds that the
Excavations Standard should be continued. OSHA also believes that
further increases in safety might be achieved through increased
outreach and training.
Signed at Washington, DC, this 19th day of March, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor.
[FR Doc. E7-5609 Filed 3-28-07; 8:45 am]
BILLING CODE 4510-26-P
