[Federal Register Volume 67, Number 162 (Wednesday, August 21, 2002)]
[Rules and Regulations]
[Pages 54103-54104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21221]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. S204A]
RIN 1218-AC02


Regulatory Flexibility Act Review of the Excavations Standard

AGENCY: Occupational Safety and Health Administration, U.S. Department 
of Labor.

ACTION: Regulatory Flexibility Act review; request for comments.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
conducting a review of the Excavations Standard pursuant to Section 610 
of the Regulatory Flexibility Act and Section 5 of Executive Order 
12866 on Regulatory Planning and Review. The purpose of this review is 
to determine, while protecting worker safety, whether this standard 
should be maintained without change, rescinded, or modified in order to 
minimize any significant impact of the rule on a substantial number of 
small entities and whether the rule should be changed to reduce 
regulatory burden or improve its effectiveness. Written public comments 
on these and other relevant issues are welcomed.

DATES: Written comments to OSHA must be sent or postmarked by November 
19, 2002.

ADDRESSES: You may submit three copies of your written comments to the 
OSHA Docket Office, Docket No. S204A, Technical Data Center, Room N-
2625, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, 
DC 20210; telephone (202) 693-2350. If your written comments are 10 
pages or fewer, you may fax them to the OSHA Docket Office at (202) 
693-1648. You do not have to send OSHA a hard copy of your faxed 
comments.
    You may submit comments electronically through OSHA's Homepage at 
http://ecomments.osha.gov/. Please note that you may not attach 
materials such as studies or journal articles to your electronic 
comments. If you wish to include such materials, you must submit three 
copies of the material to the OSHA Docket Office at the above address. 
When submitting such materials to the OSHA Docket Office, you must 
clearly identify your electronic comments by name, date, subject, and 
docket number so that we can attach them to your electronic comments.

FOR FURTHER INFORMATION CONTACT: Joanna Dizikes Friedrich, Directorate 
of Policy, Occupational Safety and Health Administration, Room N3641, 
200 Constitution Avenue, NW., Washington, DC 20210, Telephone (202) 
693-2400, Fax (202) 693-1641.

SUPPLEMENTARY INFORMATION: In 1971, the Secretary of Labor promulgated 
a safety standard for excavations (36 FR 7340, April 17, 1971) pursuant 
to section 107 of the Contract Work Hours and Safety Standards Act. 
Later in 1971, OSHA designated this Standard as an established 
occupational safety and health standard (36 FR 10466, May 29, 1971) in 
accordance with section 6(a) of the Occupational Safety and Health Act.
    In 1989, OSHA revised this Standard (54 FR 45894, October 31, 1989) 
to use performance criteria where possible, rather than specification 
requirements; to consolidate and simplify existing provisions; to add 
and clarify definitions; to eliminate duplicate provisions and 
ambiguous language; to provide a consistent method of soil 
classification; and to give employers added flexibility in providing 
protection for employees. The Standard was amended August 9, 1994 (59 
FR 40730) to protect workers using walkways over excavations.
    The Excavations Standard is currently found in 29 CFR, subpart P, 
1926.650-1926.652 and Appendices A-F, and covers the construction 
industry. The purpose of the Standard is to protect employees from 
deaths and injuries resulting from excavation work, including deaths 
and injuries resulting from cave-ins. The Standard regulates the use of 
support systems, sloping and benching systems, and other systems of 
protection as means of protection against excavation cave-ins. In 
addition, the Standard regulates the means of access to and egress from 
excavations, along with employee exposure to vehicular traffic, falling 
loads, hazardous atmospheres, water accumulation, and unstable 
structures in and adjacent to excavations. The Standard applies to all 
types of excavations, including trenches, made in the earth's surface.
    OSHA has selected the Excavation Standard for review in accordance 
with the regulatory review provisions of Section 610 of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) and Section 5 of Executive Order 
12866 (58 FR 51735, 51739, October 4, 1993). The purpose of a review 
under Section 610 of the Regulatory Flexibility Act:

    (S)hall be to determine whether such rule should be continued 
without change, or should be rescinded, or amended consistent with 
the stated objectives of applicable statutes to minimize any 
significant impact of the rules on a substantial number of small 
entities.
    The Agency shall consider 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 or the 
degree to which technology, economic conditions, or other factors 
have changed in the area affected by the rule.

The review requirements of Section 5 of Executive Order 12866 require 
agencies:

    To reduce the regulatory burden on the American people, their 
families, their communities, their State, local, and tribal 
governments, and their industries; to determine whether regulations 
promulgated by the [Agency] have become unjustified or unnecessary 
as a result of changed circumstances; to confirm that regulations 
are both compatible with each other and not duplicative or 
inappropriately burdensome in the aggregate; to ensure that all 
regulations are consistent with the President's priorities and the 
principles set forth in this Executive Order, within applicable law; 
and to otherwise improve the effectiveness of existing regulations.

    An important step in the review process involves the gathering and 
analysis of information from affected persons about their experience 
with the rule and any material changes in circumstances since issuance 
of the rule. This document requests written comments on the continuing 
need for the rule, its adequacy or inadequacy, its small business 
impacts, and other relevant issues. Comments concerning the following 
subjects would assist the Agency in its review. (The purpose of these 
questions is to assist commenters in their responses and not to limit 
the format or substance of their comments. Of course, comments are 
requested on all issues raised by Section 610 of the Regulatory 
Flexibility Act and Section 5 of Executive Order 12866.)

Safety/Effectiveness

    1. Do any aspects of Subpart P need to be updated as a result of 
technological developments over the past decade?
    2. Does compliance with the Excavations Standard at 29 CFR subpart 
P (i.e., Secs. 1926.650-1926.652 and Appendices A-E) provide safety 
from cave-ins and other trenching and excavation accidents? Are there 
additional protections which could improve safety?

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    3. If firms fail to comply with the Excavations Standard, is non-
compliance more commonly the result of: (1) A lack of information 
(e.g., about the dangers, or the safety requirements); (2) inadequate 
supervision; (3) cost pressures; or (4) other factors? How could OSHA 
encourage improved compliance?
    4. Are OSHA's requirements in the Excavations Standard known to 
firms that do trenching and excavation jobs, including small firms and 
firms that dig trenches only occasionally? How could awareness be 
increased for such firms?

Costs and Impacts

    5. Does OSHA's Excavations Standard impose an unnecessary burden to 
small businesses, or to industry in general? If so, which requirements, 
and how could this burden be reduced without decreasing safety?
    6. Do any of the requirements in the Excavations Standard lead to a 
disproportionate burden on small entities? If so, which requirements 
lead to a disproportionate burden, and how?
    7. What percent of the time and cost of an excavation job do safety 
measures represent? Do these percentages vary significantly depending 
on the type of job, soil, firm, or other factors? Provide data, if 
possible.
    8. Which types of safety measures have the greatest impact on 
productivity? The lowest impact on productivity?
    9. Do bidding practices (or requirements) for construction jobs 
encourage or discourage uniform compliance with the Excavations 
Standard (e.g., by explicitly identifying planned subpart P safety 
measures in bids delivered to customers, or by certifying compliance 
with subpart P as part of the bid)?
    10. How have changes in technology, the economy, or other factors 
affected the compliance costs associated with the rule over the past 
decade or so?
    11. How might OSHA modify the requirements to reduce costs without 
jeopardizing safety?

Clarity/Duplication

    12. Are any aspects of the Excavations Standard unclear, needlessly 
complex, or duplicative? Do any portions of the Excavations Standard 
overlap, duplicate, or conflict with other Federal, State or local 
government rules?
    13. Do other government entities, including other countries, have 
alternative trenching and excavation approaches? If so, how do they 
differ from OSHA's approach? Are these alternative approaches more 
effective?
    Additional Information on the Excavations Standard: The major 
occupational hazards of excavation work result from cave-ins, from 
exposure to underground utilities, and from material or equipment 
falling into the excavation. Precautions to protect against cave-ins 
include bracing, sloping, benching, and shielding. However, the proper 
use of these techniques requires an understanding of the importance of 
such factors as excavation depth and width, soil type, hydraulic 
pressure, and other specific conditions present at the worksite.
    Excavation work is performed during the construction of buildings, 
bridges, towers, and other construction projects. There is a greater 
economic incentive to shore excavations, as opposed to trenches, due to 
the greater risks of incurring re-excavation expenses due to collapsed 
walls, and due to the possibility that damage suits would result from 
the collapse of buildings located adjacent to an excavation. In 
comparison, trenching is primarily performed by utility contractors who 
construct gas, sewer, water, and utility lines. Much of this work is 
performed as a result of competitive bids from state and local 
governments or local utilities. Trenches are less likely to be in close 
proximity to other structures; structures adjacent to trenches are less 
likely to collapse; and the cost of redigging a collapsed trench is far 
less than of re-excavating the foundation of a building.
    OSHA statistics show that during the period 1990-2000, an average 
of approximately 70 fatalities per year occurred as a result of 
excavation and trenching accidents. These fatalities fall across 
numerous Standard Industrial Classifications (SICs),\1\ but over 80 
percent of the fatalities occurred in the following 12 SICs:

SIC 1623--Water, sewer, pipeline, communications, and power line
SIC 1794--Excavation work
SIC 1711--Plumbing, heating, and air conditioning
SIC 1629--Heavy construction
SIC 1542--General contractors, non-residential, non-industrial
SIC 1611--Highway and street construction
SIC 1521--General contractors, single family homes
SIC 1771--Concrete work
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    \1\ Industries are classified by SIC, as opposed to the newer 
North American Industrial Classification (NAIC) system, due to the 
historical nature of OSHA's statistics. The relevant NAICs fall 
within NAIC 23 (Construction), including NAIC 233 (Building, 
Developing, and General Contracting), 234 (Heavy Construction), 235 
(Special Trade Contractors), and other subclassifications.
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SIC 1799--Special trade contractors
SIC 1622--Bridge, tunnel, and elevated highway
SIC 1731--Electrical work
SIC 1795--Wrecking and demolition work

    While the annual number of fatalities has remained fairly constant 
over this 1990-2000 period, the fatality rate as a percentage of the 
real value of construction activity has declined. One factor 
contributing to this decline has been an increased use of new 
``trenchless'' technologies, such as directional drilling, pipejacking, 
microtunnelling, auger boring, impact ramming, pipe bursting, folded 
pipes, and spray on linings. These technologies can result in fewer 
accidents by eliminating or reducing the amount of time that workers 
are physically exposed to the hazards of trenching. For example, some 
of these technologies use remote-controlled equipment to dig and lay 
cables, to install pipe, or to replace existing pipes.
    The construction industry has grown by approximately 20 percent 
(constant dollars) since the Excavations Standard was last modified in 
1989. The Small Business Administration (SBA) generally classifies the 
entities affected by this standard as small if their annual revenues 
are less than $12 million (for affected entities falling within NAIC 
235) or $28.5 million (for affected entities falling within NAICs 233 
and 234). Under these guidelines, the vast majority of entities 
affected by the Standard are small entities.
    Comments: All comments shall be submitted or postmarked by November 
19, 2002, to the address above. OSHA will review the written public 
comments as part of the process of conducting this regulatory review of 
the Excavations Standard. All comments received will be included in 
Docket No. S204A and will be available for public review in the OSHA 
Docket Office.

    Authority: This document was prepared under the direction of 
John L. Henshaw, Assistant Secretary of Labor for Occupational 
Safety and Health, 200 Constitution Avenue, NW., Washington, DC 
20210.

    Signed at Washington, DC, on August 14, 2002.
John L. Henshaw,
Assistant Secretary.
[FR Doc. 02-21221 Filed 8-20-02; 8:45 am]
BILLING CODE 4510-26-P