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• Publication Date: 03/29/2007
• Publication Type: Proposed Rules
• Fed Register #: 72:14727-14728
• Standard Number: 1926
• Title: Notice of Availability of the Regulatory Flexibility Act Review of the Occupational Safety Standard for Excavations

[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

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