Federal Registers - Table of Contents Federal Registers - Table of Contents
• Publication Date: 11/09/2012
• Publication Type: Final Rules
• Fed Register #: 77: 67270-67276
• Standard Number: 1926
• Title: Revising the Exemption for Digger Derricks in the Cranes and Derricks in Construction Standard

[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Rules and Regulations]
[Pages 67270-67276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27210]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2012-0025]
RIN 1218-AC75


Revising the Exemption for Digger Derricks in the Cranes and
Derricks in Construction Standard

AGENCY: Occupational Safety and Health Administration (OSHA); Labor.

ACTION: Direct final rule.

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SUMMARY: OSHA is broadening the exemption for digger derricks in its
standard for cranes and derricks. OSHA issued a final standard updating
the requirements for cranes and derricks on August 9, 2010, and the
Edison Electric Institute (EEI) petitioned for review of the standard
in the United States Court of Appeals. After petitioning, EEI provided
OSHA with new information regarding digger derricks. OSHA reviewed the
additional information and the rulemaking record, and decided to
broaden the exemption for digger derricks used in the electric-utility
industry by means of this direct final rule.

DATES: This direct final rule will become effective on February 7,
2013, unless OSHA receives significant adverse comment to this direct
final rule by December 10, 2012. All submissions, whether transmitted,
mailed, or delivered, must bear a postmark or provide other evidence of
the submission date.

ADDRESSES: Submit comments (including comments to the information-
collection (paperwork) determination described under the section titled
AGENCY DETERMINATIONS), hearing requests, and other information and
materials, identified by Docket No. OSHA-2012-0025, by any of the
following methods:
    Electronically: Submit comments and attachments electronically at
http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions online for submitting comments.
    Facsimile: OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments). Fax these
documents to the OSHA Docket Office at (202) 693-1648; OSHA does not
require hard copies of these documents. Instead of transmitting
facsimile copies of attachments that supplement these documents (e.g.,
studies, journal articles), commenters must submit these attachments to
the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, U.S.
Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210.
These attachments must clearly identify the sender's name, the date,
and the docket number (OSHA-2012-0025), so that the Docket Office can
attach them to the appropriate document.
    Regular or express mail, hand delivery, or messenger (courier)
service: Submit comments and any additional information or material to
the OSHA Docket Office, Docket No. OSHA-2012-0025 or RIN No. 1218-AC75,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-
2350. (OSHA's TTY number is (877) 889-5627.) Contact the OSHA Docket
Office for information about security procedures concerning delivery of
materials by express mail, hand delivery, and messenger service. The
Docket Office will accept deliveries (express mail, hand delivery, and
messenger service) during the Docket Office's normal business hours,
8:15 a.m. to 4:45 p.m. ET.
    Docket: To read or download comments or other information or
material in the docket, go to http://www.regulations.gov or to the OSHA
Docket Office at the address above. Documents in the docket are listed
in the http://www.regulations.gov index; however, some information
(e.g., copyrighted material) is not available publicly to read or
download through this Web site. All submissions, including copyrighted
material, are available for inspection at the OSHA Docket Office.
Contact the OSHA Docket Office for assistance in locating docket
submissions.

FOR FURTHER INFORMATION CONTACT: General information and press
inquiries: Mr. Frank Meilinger, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone: (202) 693-1999;
email: meilinger.francis2@dol.gov.
    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; email: branch.garvin@dol.gov.
    For copies of this Federal Register notice, news releases, and
other relevant document: Electronic copies of these documents are
available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Request for Comment
II. Direct Final Rulemaking
III. Discussion of the Digger-Derrick Exemption in 29 CFR 1926,
Subpart CC
    A. Background
    B. Changes to the Text of the Exemption in 29 CFR
1926.1400(c)(4)
    C. Discussion of Conforming Revisions to 29 CFR 1926, Subpart V
(Power Transmission and Distribution)
IV. 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. Request for Comment

    OSHA requests comments on all issues related to this direct final
rule, including economic, paperwork, or other regulatory impacts of
this rule on the regulated community. If OSHA receives no significant
adverse comment, OSHA will publish a Federal Register document
confirming the effective date of this direct final rule and withdrawing
the companion proposed rule published in the "Proposed Rules" section
of today's Federal Register. Such confirmation may include minor
stylistic or technical changes to the document. For the purpose of
judicial review, OSHA views the date of confirmation of the effective
date of this direct final rule as the date of promulgation.

II. Direct Final Rulemaking

    In direct final rulemaking, an agency publishes a direct final rule
in the Federal Register with a statement that the rule will go into
effect unless the agency receives significant adverse comment within a
specified period. The agency may publish an identical proposed rule at
the same time. If the agency receives no significant adverse comment in
response to the direct final rule, the rule goes into effect. OSHA
typically confirms the effective date of a direct final rule through a
separate Federal Register notice. If the agency receives a significant
adverse comment, the agency withdraws the direct final rule and treats
such comment as a response to the proposed rule. An agency typically
uses direct final rulemaking when an agency anticipates that a rule
will not be controversial.
    For purposes of this direct final rule, a significant adverse
comment is one that explains why the amendments to OSHA's digger-
derrick exemption would be inappropriate. In determining whether a
comment necessitates withdrawal of the direct final rule, OSHA will
consider whether the comment raises an issue serious enough to warrant
a substantive response in a notice-and-comment process. OSHA will not
consider a comment recommending an additional amendment to be a
significant adverse comment unless the comment states why the direct
final rule would be ineffective without the addition. Furthermore, OSHA
will not consider a comment requesting any narrowing of the existing
digger-derrick exemption to be a significant adverse comment because
narrowing the existing exemption is beyond the scope of this
rulemaking. Moreover, a comment requesting an expansion of the
exemption to encompass activities not related to digger-derrick use by
electric utilities also would be beyond the scope of this rulemaking,
and OSHA will not consider such a comment to be a significant adverse
comment unless the commenter explains why the provisions of the direct
final rule, as these provisions apply to digger derricks, would be
ineffective without the expansion.
    In addition to publishing this direct final rule, OSHA is
publishing a companion proposed rule in the "Proposed Rules" section
of today's Federal Register. The comment period for the proposed rule
runs concurrently with that of the direct final rule. OSHA also will
treat comments received on the companion proposed rule as comments
regarding the direct final rule. Likewise, OSHA will consider
significant adverse comment submitted to the direct final rule as
comment to the companion proposed rule. Therefore, if OSHA receives a
significant adverse comment on either this direct final rule or the
proposed rule, it will publish a timely withdrawal of this direct final
rule and proceed with the companion proposed rule. In the event that
OSHA withdraws the direct final rule because of significant adverse
comment, OSHA will consider all timely comments received in response to
the direct final rule when it continues with the proposed rule. After
carefully considering all comments to the direct final rule and the
proposal, OSHA will decide whether to publish a new final rule. OSHA
determined that the subject of this rulemaking is suitable for direct
final rulemaking. OSHA originally included the digger-derrick exemption
in the proposed Cranes and Derricks in Construction standard as a
result of negotiated rulemaking involving stakeholders from many
affected sectors. The existing rule for Cranes and Derricks in
Construction, subpart CC of 29 CFR 1926, exempts the majority of digger
derricks used in the telecommunications and electric-utility industries
from the requirements of that subpart. Because the revision specified
in this direct final rule extends the exemption to a small number of
digger derricks used in the electric-utility industry, and does not
impose any new costs or duties, OSHA does not expect objections from
the public to this rulemaking action.

III. Discussion of the Digger-Derrick Exemption in 29 CFR 1926, Subpart
CC

A. Background of the Digger-Derrick Exemption

    A "digger derrick" or "radial boom derrick" is a specialized
type of equipment designed to install utility poles. A digger derrick
typically is 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). When
OSHA promulgated subpart V (Power Transmission and Distribution) in
1972, it excluded digger derricks from certain requirements of 29 CFR
1926, subpart N, the predecessor to the current 29 CFR 1926, subpart
CC, standard.
    OSHA developed the proposed standard for cranes and derricks in
construction through a negotiated rulemaking involving stakeholders
from many affected sectors. The proposed standard included a limited
exemption for digger derricks (73 FR 59714, 59916 (Oct. 9, 2008)).
After the publication of the proposed rule, OSHA received many
comments criticizing the scope of the exemption because the scope
applied to digger derricks designed for the electric-utility industry,
and then only when used to dig holes for utility work. Commenters noted
that customary use of the digger derrick also involved placing a pole
in the hole and attaching transformers and other items to the pole.
Commenters complained that the exemption would be largely meaningless
unless it also encompassed these functions. Several representatives of
the telecommunications industry noted that the industry used digger
derricks routinely for similar purposes, and requested that OSHA expand
the digger-derrick exemption to encompass telecommunications work in
addition to electric-utility work (Docket ID OSHA-2007-0066-0234 and
OSHA-2007-0066-0129.1).
    When OSHA issued the final Cranes and Derricks in Construction
rule, it noted concerns about the scope of the exemption, and broadened
the scope of the exemption (see 75 FR 47906, 47924-47926, and 48136
(Aug. 9, 2010)). Current subpart CC, therefore, exempts digger derricks
used by both the electric-utility and the telecommunications
industries, and encompasses all pole work in these industries,
including placing utility poles in the ground and attaching
transformers and other equipment to the poles (see 29 CFR 1400(c)(4)).
In that exemption, OSHA clarifies that digger derricks in construction
that are exempt from subpart CC must still comply with the applicable
worker protections in the OSHA standards governing electric-utility and
telecommunications work at Sec. Sec.  1910.268 and 1910.269. The
existing exemption in Sec.  1926.1400(c) states that the subpart does
not cover digger derricks when used for augering holes for poles
carrying electric and telecommunication lines, placing and removing the
poles, and for handling associated materials to be installed on or
removed from the poles. Digger derricks used in work subject to 29 CFR
part 1926, subpart V, must comply with 29 CFR 1910.269. 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 the activities are exempt from subpart CC of 29 CFR 1926, they
must still comply with all other applicable construction standards,
such as 29 CFR 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. If 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 part 1926, including the operator-certification
requirements in Sec.  1926.1427. If 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.  1910.268 or Sec.  1910.269). If the employer
demonstrates that it complies with the exemption in subpart CC, but
does not comply with the separate requirements in subpart O
applicable to all motorized vehicles in construction, then OSHA will
cite the employer under subpart O. Note that this explanation does
not suggest 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 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
resulting impact on the utilities' operations under 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 for
EEI Dec. 7, 2010, letter, page 2). The majority of the work under the
remaining five percent is work that is 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 transformer on the ground is not.
    Furthermore, in comparison to currently exempted pole work, OSHA
believes most (if not all) of the remaining five percent of work is at
least as safe. 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
for EEI handout, "Typical Weights" chart).\2\ In addition, 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- or pad-
mounted. In those 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. Consequently, the lifting
forces on a digger derrick should be approximately the same regardless
of whether the transformer is pole- or pad-mounted (see, e.g., OSHA-
2012-0025-0003). Finally, the approximate height of the transformer
relative to the employee installing the transformer is the same for the
two types of transformers. 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 around the same height as the employee.
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    \2\ 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 those pads. If utilities do use digger derricks to
lift pads, EEI's presentation indicates that 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 does not
believe that the pads weigh any more than transformers or poles.
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    Because the same workers generally perform both types of work,
utility employers must, when the standard becomes fully effective in
November 2014, incur the cost of meeting all other requirements in
subpart CC, including the operator-certification requirements, for
those workers to perform the five percent of the work not currently
exempted. The result could be a sizable cost (about $21.6 million
annually) for an activity that does not appear significantly more
dangerous than the type of activity that OSHA already exempted. (See
Section IV.B. (Final Economic Analysis and Final Regulatory Flexibility
Act Analysis) in this preamble for a summary of these costs.) OSHA did
not consider this result when it promulgated the standard.
    OSHA acknowledges the arguments that there are minimal safety
benefits attributable to imposing the standard's requirements on the
remaining five percent of non-exempted work; moreover, the exempted
digger-derrick operations are still subject to the protections afforded
to workers by OSHA's electric-utility and telecommunications standards
(Sec.  1910.269, subpart V of 29 CFR 1926, and Sec.  1910.268,
respectively). OSHA also notes that the largest labor organization for workers in the
electric-utility industry, the International Brotherhood of Electrical
Workers, participated in settlement discussions, corroborated the
general validity of the information provided by EEI, and actively
supported EEI's request for an expanded digger-derrick exemption. In
light of these factors, OSHA is removing the burdens on employers for
the remaining five percent of non-exempted work, and revising the
digger-derrick exemption to include all digger derricks used in
construction work subject to 29 CFR 1926, subpart V. Based on its
estimates in the Final Economic Analysis in the 2010 final rule, the
Agency determined that expanding the exemption for digger derricks will
enable employers in NAICS 221120 to avoid compliance costs of about
$15.9 million per year, while employers in NAICS 221110 will avoid
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 an extension 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 the 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 for Jan. 2011 EEI letter). If OSHA finds that, should this
direct final rule become a final rule, employers are using digger
derricks increasingly for other tasks, the Agency may revisit this
issue and adjust the exemption accordingly. The Agency also recognizes
that, because the exemption only applies to work subject to the
electrical-power and telecommunications standards, employers cannot use
digger derricks within this exemption to perform unrelated tasks such
as the construction of a building or the foundation or structural
components of a substation before the installation of electric power-
transmission or power-distribution equipment. A digger derrick used for
this type of construction will still be subject to the requirements in
29 CFR 1926, subpart CC, and operators will have to be certified in
accordance with Sec.  1926.1427.

B. Changes to the Text of the Exemption in 29 CFR 1926.1400(c)(4)

    OSHA is revising the exemption in 29 CFR 1926.1400(c)(4) to include
within the exemption "any other work subject to subpart V of 29 CFR
part 1926." This revision expands the exemption to remove from
coverage under subpart CC of 29 CFR 1926 the types of non-pole, digger-
derrick work described by EEI. OSHA is not expanding the exemption for
pole work performed by employers in the telecommunications industry
because no party raised or requested such an exemption in the
litigation; therefore, this issue is outside the scope of this
rulemaking.
    The Agency also is making several minor clarifications to the text
of the exemption. First, OSHA is making a minor grammatical
clarification by 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 Cranes and Derricks in Construction
final 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
Sec.  1910.268 and subpart V of 29 CFR 1926, respectively. 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 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, OSHA is replacing the reference to Sec.  1910.269 with a
reference to 29 CFR 1926, subpart V. The current exemption in Sec.
1926.1400(c)(4) requires employers using digger derricks for work
covered by subpart V to comply with the requirements in Sec.  1910.269.
However, in the 2010 final rule for Cranes and Derricks in
Construction, OSHA also revised 29 CFR 1926.952(c)(2) of subpart V to
require digger derricks used for the purposes exempted from subpart CC
to comply with Sec.  1910.269. Thus, although the revised exemption in
this direct final rule specifies compliance with subpart V instead of
Sec.  1910.269, there is no substantive revision to digger derricks
used for augering holes and handling associated materials. The primary
purpose for this revision is to harmonize the Sec.  1926.1400(c)(4)
exemption with 29 CFR 1926.952(c)(2) to ensure that non-pole digger-
derrick work covered by subpart V receives the same protections as pole
work covered by subpart V.

C. Discussion of Conforming Revisions to 29 CFR 1926, Subpart V

    As part of this harmonizing process, OSHA also is revising the
corresponding provision in subpart V that requires compliance with
Sec.  1910.269 for all digger-derrick work exempted from subpart CC,
including Sec. Sec.  1910.269(p) (Mechanical equipment), 1910.269(a)(2)
(Training), and 1910.269(l) (Working on or near exposed energized
parts) (see new 29 CFR 1926.952(c)(2)). When OSHA promulgated subpart
CC of 29 CFR 1926 in 2010, the Agency also revised Sec.  1926.952(c)(2)
in subpart V of its construction standards (75 FR 48135). The revision
mirrored the terminology in the digger-derrick exemption in Sec.
1926.1400(c)(4), and required employers using digger derricks so
exempted to comply with Sec.  1910.269 (Electric power generation,
transmission, and distribution). In making this revision, the Agency
noted that it added specific minimum clearance-distance requirements,
which are applicable to subpart V work, to the cranes and derricks in
construction rules at subpart CC, and explained that it revised Sec.
1926.952(c) to require digger derricks to comply with Sec.  1910.269 to
provide "comparable safety requirements" (75 FR 47921).
    As revised, paragraph Sec.  1926.952(c)(2) requires employers using
digger derricks for subpart V work and, thus, not subject to the
requirements of subpart CC of 29 CFR 1926, to comply with the
requirements in Sec.  1910.269. OHSA also is clarifying that paragraph
(c)(2) applies 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 1926. As noted in the preamble to
the subpart CC final rule, OSHA currently is developing a rule that
will amend subpart V to avoid  inconsistencies between subpart V of
the construction standards and Sec.  1910.269 (see 70 FR 34822 (June 15, 2005)).
Pending completion of that rulemaking, digger derricks excluded
from subpart CC of 29 CFR 1926 will be subject to the same requirements
regardless of whether employers use them for work covered by subpart V
or work covered by Sec.  1910.269, and regardless of whether employers
use them for pole work or other subpart V work.

IV. 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) if it
substantially reduces or eliminates significant risk (see Industrial
Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607
(1980)).
    This direct final rule does not impose any additional requirements
on employers. Because OSHA previously determined that the Cranes and
Derricks in Construction standard substantially reduces a significant
risk (see 75 FR 47913), it is unnecessary for the Agency to make
additional findings on risk for the purposes of this minor amendment to
the digger-derrick exemption (see, e.g., Public Citizen Health Research
Group v. Tyson, 796 F.2d 1479, 1502 n.16 (DC Cir. 1986) (rejecting the
argument that OSHA must "find that each and every aspect of its
standard eliminates a significant risk").

B. Final Economic Analysis and Final Regulatory Flexibility Act
Analysis

    When it issued the final rule for Cranes and Derricks in
Construction, 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 and 13563. 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 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 FEA, with an allowance (to
assure maximum flexibility) that there be three trained crane operators
for every work crew. 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.
    In its FEA for the final rule, OSHA estimated that the total costs
for NAICS 221110 would be $6.7 million ($4 million for operator
certification), and the total costs for NAICS 221120 would be $18.7
million annually ($8.7 million for operator certification) (see FEA
Table B-9 in the Aug. 9, 2010, FR notice). 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 original FEA, the two main cost components
for an industry were the number of crane operators and the number of
jobs involving cranes. The original 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 1926. Employers categorized
under NAICS 221120 generally conduct electric-transmission and -
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 because 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.
---------------------------------------------------------------------------

    This direct 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 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.
    In its original 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 original 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 five percent of digger-
derrick activity exempted through this rulemaking poses any hazard
greater than the hazard posed by the digger-derrick activities OSHA
already exempted in the 2010 final rule.
    Because this direct final rule estimates cost savings of $21.6
million per year, this direct final rule is not economically
significant within the meaning of Executive Order 12866 (58 FR 51735).
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 direct final rule consistent with the
provisions of Executive Orders 12866 and 13563. Accordingly, this
direct final 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 digger derricks, 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 small entities will have reduced costs
as a result of this direct final rule, the Agency certifies that the final standard
would not impose significant economic costs on a substantial number of
small entities.

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) (ATMI); American Iron and Steel
Institute v. OSHA, 939 F.2d 975, 980 (DC Cir. 1991) (AISI)). This
direct final rule does not require any additional protective measures.
In the original 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.

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 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 this ICR. In addition, OSHA retitled the
new ICR to Cranes and Derricks in Construction (29 CFR Part 1926,
Subpart CC and Subpart DD).
    This direct final 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. Accordingly, OSHA does not believe it
is necessary to submit a new ICR to OMB. OSHA will identify any
reduction in burden hours when it renews the ICR.
    Interested parties may comment on OSHA's determination that this
direct final rule contains no additional paperwork requirements by
sending their written comments to the Office of Information and
Regulatory Affairs, Attn: OMB Desk Officer for OSHA, Office of
Management and Budget, Room 10235, 726 Jackson Place NW., Washington,
DC 20503. The Agency also encourages commenters to submit their
comments on this paperwork determination to OSHA, along with their
other comments on this direct final rule, within the specified comment
period.
    OSHA notes that a federal agency cannot conduct or sponsor a
collection of information unless it is approved by the Office of
Management and Budget (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, and that 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 direct 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, Congress expressly provides that
states may adopt, with federal approval, a plan for the development and
enforcement of occupational safety and health standards. The OSH Act
refers to states that obtain federal approval for such a plan as
"State Plan States" (29 U.S.C. 667). 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 previously concluded 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 the revision of the digger-derrick exemption.
Therefore, this direct final rule complies with Executive Order 13132.
In states without OSHA-approved state plans, any standard developed
from this direct final rule would impact state policy options in the
same manner as every standard promulgated by OSHA. In states with OSHA-
approved state plans, this rulemaking does not limit state policy
options.

F. State Plan States

    When federal OSHA promulgates a new standard or 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 are not required to 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 direct final rule do not impose any new
requirements on employers. Accordingly, State Plan States are not
required to amend their standards to incorporate the expanded exemption
specified in this direct final rule, but they may do so if they so
choose.

G. Unfunded Mandates Reform Act

    When OSHA issued the final rule for Cranes and Derricks in
Construction (75 FR 48130), 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 (64 FR 43255 (Aug. 10, 1999)), and concluded that the final rule
did not meet the definition of a "Federal intergovernmental mandate"
under the UMRA. 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 IV.B. (Final Economic Analysis and
Final Regulatory Flexibility Act Analysis) of this preamble, this
direct final rule reduces expenditures by private-sector employers. For
the purposes of the UMRA, OSHA certifies that this direct final 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.

H. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this direct final 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 direct
final 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, 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 direct 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 October 9, 2012.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons stated in the preamble of this direct final rule,
OSHA is amending 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 1926, subpart O) whenever such use is excluded from
29 CFR 1926, subpart CC, 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. 2012-27210 Filed 11-8-12; 8:45 am]
BILLING CODE 4510-26-P

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