[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Proposed Rules]
[Pages 67313-67319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27209]


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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: Notice of proposed rulemaking.

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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 proposed rule.

DATES: Comment 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: 
[email protected].
    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: [email protected].
    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 proposed rule, 
including economic, paperwork, or other regulatory impacts of this rule 
on the regulated community. If OSHA receives no significant adverse 
comment to either this proposal or the direct final rule, OSHA will 
publish a Federal Register document confirming the effective date of 
the direct final rule and withdrawing this 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

[[Page 67314]]

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 proposed rule and the companion 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 proposed rule, OSHA is publishing a 
companion direct final rule in the ``Final Rules'' section of today's 
Federal Register. The comment period for this proposed rule runs 
concurrently with that of the direct final rule. OSHA also will treat 
comments received on the companion direct final rule as comments 
regarding the proposed rule. Likewise, OSHA will consider significant 
adverse comment submitted to the proposed rule as comment to the direct 
final rule. Therefore, if OSHA receives a significant adverse comment 
on either the direct final rule or this proposed rule, it will publish 
a timely withdrawal of the direct final rule and proceed with this 
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 this 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 part 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 proposed 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 part 1926, 
they must still 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. 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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[[Page 67315]]

    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 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 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 part 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 part 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 the 
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

[[Page 67316]]

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 part 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 part 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 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, OSHA is replacing the reference to Sec.  1910.269 with a 
reference to 29 CFR part 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 proposed 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 Part 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 part 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 part 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 part 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 proposed 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 (D.C. 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

[[Page 67317]]

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 part 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 proposed 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 proposed 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 proposed rule estimates cost savings of $21.6 million 
per year, this proposed rule is not economically significant within the 
meaning of Executive Order 12866 (58 FR 51735). The proposed 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 proposed rule consistent with the provisions of 
Executive Orders 12866 and 13563. Accordingly, this proposed 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 proposed 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 (D.C. Cir. 1991) (AISI)). This 
proposed 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 proposed 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 
proposal 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 proposed

[[Page 67318]]

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 proposed 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 proposed rule complies with Executive Order 13132. In 
states without OSHA-approved state plans, any standard developed from 
this proposed rule would impact state policy options in the same manner 
as every standard promulgated by OSHA. In states with OSHA-approved 
state plans, this proposed 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 proposed 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 proposal, 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 
proposed rule reduces expenditures by private-sector employers. For the 
purposes of the UMRA, OSHA certifies that this proposed 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 proposed 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 proposed 
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.

Proposed Amendments to Standards

    For the reasons stated in the preamble of this proposed rule, OSHA 
is proposing to amend 29 CFR part 1926 as follows:

[[Page 67319]]

PART 1926--[AMENDED]

Subpart V--Power Transmission and Distribution

    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.
    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 such use is excluded 
from 29 CFR part 1926, subpart CC, in accordance with Sec.  
1926.1400(c)(4).
* * * * *

Subpart CC--Cranes and Derricks in Construction

    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.

    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. 2012-27209 Filed 11-8-12; 8:45 am]
BILLING CODE 4510-26-P