Cranes and Derricks in Construction: Demolition and Underground Construction, 49722-49730 [2012-20171]

Download as PDF tkelley on DSK3SPTVN1PROD with RULES 49722 Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations with constructive notice of the surveys as well as of their requirement to complete them. See 44 U.S.C. 1507 (filing a document with the Federal Register ‘‘is sufficient to give notice of the contents of the document to the person subject to or affected by it’’). However, issuing surveys through notice and comment was not required by statute. Additionally, over time BEA found that going through the notice and comment requirements of the APA to prepare and issue surveys on a routine basis was time-consuming, and determined that it could collect such information just as, or perhaps more, efficiently by issuing the surveys through notices, rather than through individual rulemakings, and by informing respondents directly of the need to complete the surveys. See 77 FR 772 (January 6, 2012). To make this change, on April 24, 2012, BEA published in the Federal Register a final rule titled, ‘‘International Services Surveys and Direct Investment Surveys Reporting,’’ 77 FR 24373. That rule amended BEA’s regulations at 15 CFR parts 801–807, and stated that BEA will no longer issue most surveys required under the Act or the Omnibus Trade and Competitiveness Act of 1988 following notice and comment rulemaking procedures under the APA. BEA will now, going forward, issue notices of its surveys in the Federal Register and individually to U.S. persons required to complete the surveys. See 15 CFR 801.3. The purpose of this notice is to clarify to respondents that the final rule did not alter any pre-existing response obligations; that is, the rule amending BEA’s regulations at 15 CFR parts 801– 807 does not have retroactive effect. We also note that the APA generally prohibits an agency from implementing a rule with retroactive effect. Direct investment and international trade in services surveys that BEA is currently conducting will continue to operate under the regulations established under their most recent rulemaking action prior to April 24, 2012. For example, entities required by former 15 CFR 806.14 to complete the BE–11 Annual Survey of U.S. Direct Investment Abroad (see 75 FR 80294) for fiscal year 2011 are not freed of that obligation until they receive notice from BEA of a new BE–11 survey. The new procedures for implementing surveys through notices in the Federal Register and through direct notices to respondents will be used only for surveys issued after the April 24, 2012 final rule. Accordingly, BEA’s new survey procedures only apply to surveys it will issue in the future, not to those that it VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 issued prior to April 24, 2012 following notice and comment rulemaking according to the APA. Dated: August 9, 2012. Joel D. Platt, Acting Director, Bureau of Economic Analysis. [FR Doc. 2012–20147 Filed 8–16–12; 8:45 am] BILLING CODE P DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1926 [Docket ID–OSHA–2007–0066] RIN 1218–AC61 Cranes and Derricks in Construction: Demolition and Underground Construction Occupational Safety and Health Administration (OSHA), Labor. ACTION: Direct final rule. AGENCY: On August 9, 2010, OSHA issued a final standard updating the requirements for cranes and derricks used in construction work. For most construction work, the final rule replaced a prior cranes and derricks standard. However, the prior standard continues to apply to demolition and underground construction work. Through this direct final rule, OSHA is applying the updated requirements to that work. With this direct final rule, OSHA also is correcting inadvertent errors made to the demolition and underground construction standards when it issued the final rule for cranes and derricks in construction. DATES: This direct final rule will become effective on November 15, 2012 unless OSHA receives a significant adverse comment to this direct final rule or the companion proposal by September 17, 2012. If OSHA receives adverse comment, it will publish a timely withdrawal of the rule in the Federal Register. Submit comments to this direct final rule, including comments to the information-collection (paperwork) determination (described under the section titled AGENCY DETERMINATIONS), hearing requests, and other information by September 17, 2012. All submissions must bear a postmark or provide other evidence of the submission date. ADDRESSES: Submit comments, hearing requests, and other material, identified by Docket No. OSHA–2007–0066, by any of the following methods: SUMMARY: PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 Electronically: Submit comments and attachments, as well as hearing requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow the instructions online for submitting comments. Please note that this docket may include several different Federal Register notices involving active rulemakings, so selecting the correct notice or its ID number when submitting comments for this rulemaking is extremely important. After accessing the docket (OSHA–2007–0066), look for the name of this rulemaking (Cranes and Derricks in Construction: Demolition and Underground Construction) in the column labeled ‘‘Title.’’ 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, subject, the title of the rulemaking (Cranes and Derricks in Construction: Demolition and Underground Construction) and the docket number (OSHA–2007–0066) so that the Docket Office can attach them to the appropriate document. Regular mail, express delivery, hand (courier) delivery, and messenger service: Submit comments and any additional material to the OSHA Docket Office, RIN No. 1218–AC61, 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 delivery, hand delivery, and messenger service. The Docket Office will accept deliveries (express delivery, hand delivery, messenger service) during the Docket Office’s normal business hours, 8:15 a.m. to 4:45 p.m., e.t. Instructions: All submissions must include the Agency’s name, the title of the rulemaking (Cranes and Derricks in Construction: Demolition and Underground Construction), and the docket number (i.e., OSHA Docket No. OSHA–2007–0066). OSHA will place comments and other material, including E:\FR\FM\17AUR1.SGM 17AUR1 Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations any personal information, in the public docket without revision, and the comments and other material will be available online at http:// www.regulations.gov. Therefore, OSHA cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others) such as Social Security numbers, birth dates, and medical data. Docket: To read or download comments or other material in the docket, go to http://www.regulations.gov or to the OSHA Docket Office at the above address. The electronic docket for this direct final rule established at http://www.regulations.gov lists most of the documents in the docket. 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, OSHA Office of Communications, Room N–3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693–1999. 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. Copies of this Federal Register notice and news releases: Electronic copies of these documents are available at OSHA’s Web page at http:// www.osha.gov. SUPPLEMENTARY INFORMATION: tkelley on DSK3SPTVN1PROD with RULES Table of Contents I. Request for Comment II. Direct Final Rulemaking III. Discussion of Amendments A. Background B. Demolition Work C. Underground Construction D. Rationale for Extending Subpart CC to Demolition and Underground Construction IV. Agency Determinations A. Final Economic Analysis and Final Regulatory Flexibility Analysis B. Paperwork Reduction Act of 1995 C. Federalism D. State Plan States E. Unfunded Mandates Reform Act F. Consultation and Coordination With Indian Tribal Governments G. Legal Considerations List of Subjects in 29 CFR Part 1926 Authority and Signature VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 Amendments to Standards I. Request for Comment OSHA requests comment 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 to either the direct final rule or the companion proposed rule, 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 this Federal Register. Such confirmation may include minor stylistic or technical changes to the document. For the purpose of judicial review, OSHA considers 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 become effective 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 agency 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 uses direct final rulemaking when it anticipates that a rule will not be controversial. OSHA is publishing a companion proposed rule along with this direct final rule in the ‘‘Proposed Rules’’ section of today’s Federal Register. For purposes of this direct final rule, a significant adverse comment is one that explains why the amendments to OSHA’s underground construction and demolition standards 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. The comment period for the proposed rule runs concurrently with that of the PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 49723 direct final rule. OSHA will treat comments received on the companion proposed rule as comments regarding the direct final rule. OSHA also will consider significant adverse comment submitted to the direct final rule as comment to the companion proposed rule. 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 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. Under the final rule for cranes and derricks in construction, most construction work involving cranes and derricks falls under new subpart CC of 29 CFR 1926, but underground construction and demolition remain covered under the former rule (i.e., § 1926.550). These amendments will result in the new subpart CC covering all construction operations, thereby improving worker safety because the new rule provides better protection to workers than the former rule. Moreover, these amendments will facilitate employer compliance by having all construction operations involving cranes and derricks subject to a single rule rather than by having a few operations subject to a different rule. In addition, this direct final rule corrects inadvertent errors made to the standards for underground construction and demolition when OSHA issued the final cranes rule. Therefore, OSHA does not expect objections from the public to this rulemaking action. Accordingly, the Agency believes the regulated community will welcome this effort to harmonize the requirements regulating crane and derrick operations in underground construction and demolition, and to remove errors that hinder interpretation and proper application of existing standards. III. Discussion of Amendments A. Background OSHA designed the final rule for cranes and derricks in construction, codified at 29 CFR part 1926, subpart CC, to replace the earlier rule E:\FR\FM\17AUR1.SGM 17AUR1 tkelley on DSK3SPTVN1PROD with RULES 49724 Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations (§ 1926.550) for all construction work.1 In proposing the new cranes and derricks rule, OSHA explained that the rule’s purpose was ‘‘to protect employees from the hazards associated with hoisting equipment when used to perform construction activities’’ (73 FR 59714). Because OSHA developed the new rule to supplant the former rule entirely, OSHA proposed to remove and reserve § 1926.550 (73 FR 59915). When other OSHA construction standards referred to § 1926.550 directly, or indirectly, as part of subpart N, OSHA proposed to amend those provisions to refer instead to the new requirements in subpart CC (73 FR 59914–15). In the proposed rule for cranes and derricks in construction, OSHA inadvertently did not propose to amend three provisions that referred to subpart N and encompassed the requirements of § 1926.550. These provisions included two provisions applicable to demolition work (§ 1926.856(c) and § 1926.858(b)), and one provision applicable to underground construction work (§ 1926.800(t)). When it issued the final rule, OSHA noted concerns about potentially inadequate notice to the public regarding any effort to amend these provisions in the final rule; consequently, OSHA decided not to amend these provisions in the final rule. OSHA instead stated that it would revisit the issue later (75 FR 47920–21). Having removed the requirements of § 1926.550 in the final rule, OSHA had to reestablish the substance of the demolition and underground construction provisions in a new subpart DD in the final rule, redesignate § 1926.550 as § 1926.1501 of subpart DD, and amend the demolition and underground construction provisions that previously referred to subpart N to refer instead to the new subpart DD. OSHA provided in § 1926.1500 of subpart DD that ‘‘[t]his subpart applies in lieu of § 1926 subpart CC.’’ However, in making these revisions, OSHA inadvertently made changes to the demolition and underground construction provisions that modified the meaning of these provisions. In addition, the Code of Federal Regulations eliminated all of the subparagraphs of § 1926.800(t), except for the introductory paragraph, because of a technical error in the draft regulatory language. This direct final rule, therefore, will accomplish two goals. First, it will bring all crane and derrick use in construction work under new subpart CC. Second, it will correct the errors in the final rule 1 OSHA published the final rule at 75 FR 47906 (Aug. 9, 2010). VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 that substantively altered the demolition and underground construction provisions, and replace subparagraphs § 1926.800(t)(1) through (4). Below, OSHA describes the amendments to the demolition and underground construction standards that OSHA made in the final rule for cranes and derricks in construction (including inadvertent errors), as well as the revisions and corrections to these standards made by OSHA under this direct final rule. B. Demolition Work Before OSHA issued the final rule for cranes and derricks in construction, § 1926.856(c) stated, ‘‘Mechanical equipment used shall meet the requirements specified in subparts N and O of this part,’’ and § 1926.858(b) read, ‘‘Cranes, derricks, and other hoisting equipment used shall meet the requirements specified in subpart N of this part.’’ In the final rule for cranes and derricks in construction, OSHA established a new subpart DD, redesignated the prior cranes and derricks rule (§ 1926.550) as § 1926.1501 of subpart DD, and amended § 1926.856(c) to require compliance with the new subpart DD, in addition to the remaining requirements of subparts N and O. OSHA also amended § 1926.858(b) to require compliance with new subpart DD instead of subpart N. It was OSHA’s expressed purpose not to make substantive revisions to the requirements of these two sections in the final rule.2 Nevertheless, OSHA made an inadvertent substantive change to § 1926.858(b).3 That section originally incorporated all requirements of subpart N for ‘‘cranes, derricks, and other hoisting equipment,’’ not just the requirements of subpart N’s cranes and derricks standard at § 1926.550. However, the final rule did not reference other requirements of subpart N that pertain to demolition work, which include the requirements of § 1926.552 (Material hoists, personnel hoists, and elevators) and § 1926.554 (Overhead hoists). As a result, the amendment had the effect of deleting the requirement for employers engaged in demolition work to comply with 2 OSHA explained in the preamble to the final rule that the ‘‘redesignation of § 1926.550 and the replacement of references [to subpart N] do not alter any of the substantive requirements of §§ 1926.856(c) and 1926.858(b)’’ (75 FR 47921). 3 OSHA also inadvertently listed the heading of § 1926.858 as ‘‘Removal of walls, floors and materials with equipment’’ (the same heading as § 1926.856), instead of ‘‘Removal of steel construction,’’ but this erroneous heading did not appear in the subsequent edition of the Code of Federal Regulations. Therefore, OSHA finds no need to address this error in this rulemaking. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 §§ 1926.552 and 1926.554. Therefore, to cover all construction work under subpart CC, and to correct these errors, OSHA is amending §§ 1926.856(c) and 1926.858(b) by replacing the requirements to comply with subpart DD with requirements to comply with subpart CC, and is amending § 1926.858(b) by reinstating the requirement to comply with subpart N as well. C. Underground Construction Section 1926.800(t) contains requirements for hoisting that are unique to underground construction. Before OSHA issued the final rule for cranes and derricks in construction, the previous version of § 1926.800(t) contained an introductory paragraph that cross-referenced other OSHA standards that apply to hoisting in underground construction; these crossreferences consisted of the requirements of the prior cranes and derricks rule at § 1926.550, including most of § 1926.550(g) (the provision of the prior rule that applied to hoisting personnel), and requirements for material hoists, personnel hoists, and elevators at § 1926.552(a) through (d). Previous § 1926.800(t) included one substantive modification to the requirements of prior § 1926.550(g)(2): employers could use cranes to hoist employees for routine access to underground worksites via a shaft without showing that conventional means would be more hazardous, or not possible, for this purpose due to structural design or worksite conditions.4 When it issued the underground construction rule, OSHA included this modification because hoisting personnel for routine access to the underground worksites via a shaft occurs under more controlled, and less hazardous, conditions than hoisting personnel in general (54 FR 23824, 23845). Previous § 1926.800(t)(1) through (4) contained additional requirements for hoisting unique to underground construction. Language at the beginning of the introductory paragraph of § 1926.800(t), ‘‘Except as modified by this paragraph (t),’’ clarified that the requirements and exceptions in 1926.800(t)(1) through (4) take precedence over the cross-referenced requirements, including the former cranes standard under § 1926.550. In the final cranes rule, OSHA redesignated the prior cranes and derricks rule as § 1926.1501 of subpart DD. It was OSHA’s expressed purpose to 4 Prior § 1926.550(g)(2) required employers to show, before using cranes to hoist personnel to a worksite, that conventional means would be more hazardous than cranes, or not possible, due to structural design or worksite conditions. E:\FR\FM\17AUR1.SGM 17AUR1 tkelley on DSK3SPTVN1PROD with RULES Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations preserve the existing crane requirements for underground construction by changing references in the introductory paragraph of § 1926.800(t) from § 1926.550 and § 1926.500(g)(2) to § 1926.1501 and § 1926.1501(g)(2), respectively. OSHA clarified this purpose in the preamble to the final rule by stating that the revisions to § 1926.800(t) ‘‘do not alter any of the substantive requirements of § 1926.800(t)’’ (75 FR 47920). However, OSHA inadvertently changed § 1926.800(t) by amending the introductory paragraph to require employers engaged in underground construction to comply only with new § 1926.1501(g) (which duplicated § 1926.550(g)), instead of preserving the former routine-access exemption by requiring compliance with § 1926.1501 in its entirety, and modifying the requirements of § 1926.1501(g)(2) (which duplicated former § 1926.550(g)(2)).5 Additionally, OSHA inadvertently moved the language ‘‘Except as modified by paragraph (t)’’ to the beginning of the second sentence of the introductory paragraph so that it no longer applied to the cross-referenced § 1926.1501 requirements, but instead only applied to the cross-referenced requirements in § 1926.552(a) through (d). Finally, although OSHA did not plan to alter any of the (then remaining) requirements and exemptions of § 1926.800(t)(1) through (4), but only to amend the introductory paragraph, a technical error in the instructions to the Federal Register resulted in the deletion of subparagraphs § 1926.800(t)(1) through (4). The deletion was not mentioned in the preamble to the final cranes rule. As amended by the final cranes rule, § 1926.800(t) presents four problems. First, the prior version of § 1926.800(t) incorporated all of § 1926.550, not just § 1926.550(g). However, the amended version of § 1926.800(t) refers only to § 1926.1501(g), the successor to § 1926.550(g). Therefore, as now written, § 1926.800(t) does not explicitly require employers to comply with either the final cranes rule or the prior rule at § 1926.550, except for § 1926.1501(g), the prior rule’s provision on hoisting personnel. Second, the exception from § 1926.550(g)(2), specified in the former version of § 1926.800(t), provided that employers could use cranes to hoist personnel for routine access to underground worksites via a shaft 5 OSHA stated in the final rule that it was including the reference to § 1926.1501(g) to avoid any potential notice problem that may arise if OSHA substituted a reference to subpart CC in place of the prior reference to § 1926.550(g) (75 FR 47920). VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 without showing that other means of access are more hazardous or impossible. OSHA did not include this exception in the new version of § 1926.800(t). This inadvertent error places an additional and unnecessary burden on employers that use cranes for this purpose. Third, moving the text ‘‘Except as modified by paragraph (t)’’ to the beginning of the second sentence of the introductory paragraph of § 1926.800(t) results in ambiguity as to the relationship between incorporated crane requirements and the provisions in § 1926.800(t)(1) through (4). Finally, the inadvertent elimination of § 1926.800(t)(1) through (4) from the Code of Federal Regulations resulted in eliminating requirements that OSHA adopted in a 1989 rulemaking (54 FR 23843) to ensure that employees engaged in underground construction receive adequate protection from hazards unique to hoisting in this setting. In this direct final rule, OSHA is amending § 1926.800(t) to extend subpart CC to underground construction, and to resolve the technical errors set forth in this section. OSHA is amending the introductory paragraph of § 1926.800(t) to restore the provision allowing employers to use cranes to hoist personnel for routine access to the underground worksites via a shaft without the need to show that conventional means of access are more hazardous or impossible for this purpose. This amendment excepts routine access of employees to an underground worksite via a shaft from the requirements of § 1926.1431(a). The requirements of § 1926.1431(a) are virtually identical to the requirements of § 1926.550(g)(2). In addition, OSHA is amending § 1926.800(t) by restoring the clause ‘‘Except as modified by this paragraph (t)’’ to the beginning of the introductory paragraph, and restoring § 1926.800(t)(1) through (4). OSHA is also revising the language in the introductory paragraph for clarity, and is correcting three minor grammatical errors that appeared in the text of paragraphs § 1926.800(t)(3)(vi), (t)(4)(iii), and (t)(4)(iv), as previously published in the Code of Federal Regulations. D. Rationale for Extending Subpart CC to Demolition and Underground Construction The revisions made by this direct final rule will enable OSHA to cover all cranes and derricks used in construction under subpart CC. These revisions implement the original purpose of the rule and will benefit both employees and employers. These revisions will PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 49725 ensure that the significant benefits of subpart CC, which include saving 22 lives per year and preventing 175 nonfatal injuries per year compared to prior § 1926.550 (75 FR 48079), extend to demolition and underground construction. Accordingly, applying subpart CC to demolition and underground construction will ensure that construction workers in those sectors receive the same safety protections from new subpart CC as other construction workers. The revisions also will benefit construction contractors that engage in underground construction or demolition work, in addition to other types of construction work, because these contractors will now be subject to a single standard rather than having some of their activities covered under subpart CC and other work covered by subpart DD. This action will avoid the confusion that would result if new subpart CC covers part of a project and revised § 1926.800(t) covers another part of the project. For example, in a cut-and-cover tunneling project, the underground construction standard applies only after covering the excavation in such a manner as to establish conditions characteristic of underground construction. 29 CFR 1926.800(a). Therefore, under the current requirements, subpart CC would apply to the work while the excavation is open, but after covering the excavation, subpart DD would apply, thereby resulting in the same crane or derrick being subject to different standards during different phases of the project. Finally, this action will facilitate employer compliance because demolition and underground construction contractors will no longer be subject to the outdated requirements in prior § 1926.550, which relied heavily on pre-1970 consensus standards. IV. Agency Determinations A. Final Economic Analysis and Final Regulatory Flexibility Analysis When it issued the final cranes rule, 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 Order 12866 (58 FR 51735). OSHA also published a Final Regulatory Flexibility Analysis (FRFA) as required by the Regulatory Flexibility Act (5 U.S.C. 601–612). OSHA’s approach to estimating costs and economic impacts in these analyses began by estimating, for all construction sectors, the total number of cranes and whether they were owned and rented; E:\FR\FM\17AUR1.SGM 17AUR1 tkelley on DSK3SPTVN1PROD with RULES 49726 Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations owned without rental; or leased. As a result, both analyses covered all cranes engaged in construction activities, including cranes engaged in underground construction and cranes engaged in construction work involving demolition. The FEA for the final cranes standard, which included all cranes, crane operations, and industry sectors subject to this direct final rule, found that the requirements of the rule were technologically and economically feasible. Because the FEA drew these conclusions from calculations encompassing all of the underground construction and demolition crane operations covered by this direct final rule, the conclusions in the earlier FEA are valid for this direct final rule. The reference to the FEA for the final cranes rule, therefore, establishes that this direct final rule is technologically and economically feasible, addresses significant risks, and reduces those risks significantly. The FEA, which OMB reviewed, meets the requirements of Executive Orders 12866 and Executive Order 13563 with respect to the operations covered by this direct final rule; OSHA included these operations in the FEA for the final cranes standard. Therefore, OSHA believes that that this direct final rule also complies with Executive Orders 12866 and Executive Order 13563. To determine if this direct final rule has annual costs of greater than $100 million, or would have a significant economic impact on a substantial number of small firms, OSHA examined the sectors most affected by this direct final rule. This direct final rule affects two construction sectors: NAICS 237990 (Other Heavy and Civil Engineering Construction), which includes all establishments engaged in underground construction, and NAICS 238910 (Site Preparation Contractors), which includes all establishments engaged in demolition. This analysis, therefore, reviews the results for these two sectors reported in the final crane standard’s FEA, which the Federal Register published on August 9, 2010. That FEA simply considered all cranes and crane operations in these sectors, and did not analyze separately those operations involving underground construction or demolitions because OSHA planned to apply subpart CC to these operations. OSHA will report here the results for these entire sectors, which will inevitably involve greater costs and impacts than for the activities addressed in this direct final rule because both sectors have many cranes and crane jobs that do not involve underground construction or demolition VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 activities. Table B–9 of the FEA showed that NAICS 237990, which includes all crane operations involved in underground construction operations, had annualized compliance costs of $1,903,569 for firms that own and rent cranes, $205,532 for firms that own, but do not rent cranes, and $1,151,759 for firms that lease cranes, for total annualized costs of $3,260,860 (75 FR 48102–48105). Table B–9 also showed that NAICS 238910, which contains all crane operations involving demolitions, had annualized compliance costs of $1,232,974 for firms that own and rent cranes, $292,601 for firms that own, but do not rent cranes, and $1,626,463 for firms that lease cranes, for total annualized compliance costs of $3,152,038. The total annualized compliance costs for both sectors are $6,412,898. Because these two NAICS sectors include operations not involved in underground construction or demolition, the total estimated annualized compliance costs of $6,412,898 for these two sectors will be greater than the actual costs of this direct final rule. Based on these costs, OSHA concludes that this direct final rule is not a significant rule under either E.O. 12866 or the Unfunded Mandates Act. With respect to technological feasibility, the earlier FEA, which included consideration of both underground construction and demolition operations, noted: In accordance with the OSH Act, OSHA is required to demonstrate that occupational safety and health standards promulgated by the Agency are technologically feasible. Accordingly, OSHA reviewed the requirements that would be imposed by the final regulation, and assessed their technological feasibility. As a result of this review, OSHA has determined that compliance with the requirements of the final standard is technologically feasible for all affected industries. The standard would require employers to perform crane inspections, utilize qualified or certified crane operators, address ground conditions, maintain safe distances from power lines using the encroachment prevention precautions, and to fulfill other obligations under the standard. Compliance with all of these requirements can be achieved with readily and widely available technologies. Some businesses in the affected industries already implement the requirements of the standard to varying degrees (some states have requirements), as noted during the SBREFA Panel. OSHA believes that there are no technological constraints in complying with any of the proposed requirements, and received no comments that suggested that these standards were technologically infeasible. (75 FR 48095). PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 In Table B–12 of the FEA for the final cranes rule, OSHA examined the costs as a percentage of revenues and as a percentage of profits in these two sectors. This table shows that, for both sectors, the greatest potential impacts were on establishments that own and rent cranes with operators. This table showed that for NAICS 237990, which includes all underground construction operations, costs were 0.18 percent (less than 1 percent) of revenues and 3.54 percent of profits. This table also showed that for NAICS 238910, including all demolition operations involving cranes, costs were 0.18 percent of revenues and 4.05 percent of profits. (Table B–12 and the FEA as a whole provide the full calculations and derivations.) The FEA from the final cranes standard stated: The Agency concludes that the final standard is economically feasible for the affected industries. As described above, a standard is economically feasible if there is a reasonable likelihood that the estimated costs of compliance ‘‘will not threaten the existence or competitive structure of an industry, even if it does portend disaster for some marginal firms.’’ United Steelworkers of America v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980). The potential impacts on employer costs associated with achieving compliance with the final standard fall well within the bounds of economic feasibility in each industry sector. Costs of 0.2 percent of revenues and 4 percent of profits will not threaten the existence of the construction industry, affected general industry sectors, or the use of cranes in affected industry sectors. OSHA does not expect compliance with the requirements of the final standard to threaten the viability of employers or the competitive structure of any of the affected industry sectors. When viewed in the larger context of the construction sector, an increase in costs of $148.2 million a year is effectively negligible, and will have no noticeable effect on the demand for construction services. Even when viewed as an increase in the costs of using cranes, an increase in the cost of rentals services of 0.2 percent will not cause the construction industry to forego the use of cranes and, thus, put crane leasing firms out of business. (75 FR 48112). Because the earlier FEA drew this conclusion with respect to costs that included the costs of this direct final rule, as well as other costs that made the impacts greater than those of this direct final rule, OSHA concludes that the FEA for the cranes and derricks final rule demonstrates that this direct final rule is economically feasible. Tables B–14 and B–15 of the FEA for the cranes and derricks final rule examined the costs as a percentage of revenues and as a percentage of profits in these two sectors for small firms as defined by SBA, and very small entities E:\FR\FM\17AUR1.SGM 17AUR1 Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations with less than 20 employees, respectively. Because so many firms owning cranes are small, there is no appreciable difference between the impacts on small and very small firms versus the impacts for all firms already discussed. Comparison of the two tables shows that, for NAICS 237990, the impacts for very small firms were equal to or greater than those for small firms. Table B–15 shows that, for NAICS 237990, costs were 0.18 percent of revenues and 3.54 per cent of profits. This table also shows that, for NAICS 238910, including all demolition operations involving cranes, there were no very small entities that owned and rented cranes, with the result that the greatest impacts are for small entities that own and rent crane where costs are 0.18 percent of revenues and 4.05 percent of profits. In its regulatory flexibility analysis, OSHA generally defines a significant economic impact on small entities as one with costs in excess of one percent of revenues or five percent of profits. The possible costs of this direct final rule clearly are well below these thresholds. OSHA, therefore, certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities. B. Paperwork Reduction Act of 1995 tkelley on DSK3SPTVN1PROD with RULES When OSHA issued the final rule on August 9, 2010, it submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) titled Cranes and Derricks in Construction (29 CFR Part 1926, Subpart CC). This ICR 6 covered all establishments in the construction industry, including all of the establishments in NAICS 237990 and NAICS 238910. 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 the existing ICR. In addition, OSHA retitled the new ICR to Cranes and Derricks in Construction (29 CFR Part 1926, Subpart CC and Subpart DD).7 6 The ICR is part of Exhibit 0425 in the docket for the final rule on cranes and derricks in construction (OSHA–2007–0066). It is available at www.regulations.gov and at www.reginfo.gov (OMB Control Number 1218–0261). 7 The request and OMB approval for discontinuing the previous Cranes and Derricks in Construction ICR (OMB Control Number 1218– 0113) and the retitling of the ICR are available at www.reginfo.gov. VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 This direct final rule requires no additional collection of information.8 OMB’s approval of OSHA’s ICR under Control Number 1218–0261 already covers all collections of information required by this direct final rule, and OSHA does not believe it is necessary to submit a new ICR to OMB seeking to collect additional information under this direct final rule. Interested parties who comment on OSHA’s determination that this proposal contains no additional paperwork requirements must send their written comments to the Office of Management and Budget, Attn: OMB Desk Officer for OSHA, Room 10235, 726 Jackson Place NW., Washington, DC 20503. OSHA also encourages commenters to submit their comments on this paperwork determination to it, along with their other comments on the direct final rule. OSHA notes that a Federal agency cannot conduct or sponsor a collection of information unless OMB approves it under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the agency displays a currently valid OMB control number. The public need not respond to a collection of information requirement unless the agency displays a currently valid OMB control number, and, notwithstanding any other provision 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. C. Federalism OSHA reviewed this direct final rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 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 8 Although the final rule for cranes and derricks in construction did not require employers covered by subpart DD to meet the information-exchange requirements of subpart CC, OSHA did not subtract these employers from its analysis of the burden and costs for these requirements in the paperwork analysis for subpart CC. Therefore, this approach inflated the burden and costs estimates of the ICR approved by OMB for subpart CC; however, the burden and costs estimates are accurate now that OSHA is applying subpart CC to underground construction and demolition work. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 49727 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. States that obtain Federal approval for such a plan are referred to as ‘‘State Plan States.’’ 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. 29 U.S.C. 667. 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 from its analysis that promulgation of subpart CC complies with Executive Order 13132. 75 FR 48128–29. That analysis applies to the extension of subpart CC to establishments engaged in demolition work and underground construction; therefore, this direct final rule complies with Executive Order 13132. In states without an OSHA-approved State Plan, any standard developed from this direct final rule would limit state policy options in the same manner as every standard promulgated by OSHA. In states with OSHA-approved State Plans, this rulemaking does not significantly limit state policy options. D. State Plan States When Federal OSHA promulgates a new standard or more stringent amendment to an existing standard, State Plan States 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’’ as the new Federal standard or amendment. 29 CFR 1953.5(a). The state standard must be at least as effective as the final Federal rule. State Plan States must adopt the Federal standard or complete their own 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 OSHAapproved occupational safety and health plans are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, E:\FR\FM\17AUR1.SGM 17AUR1 49728 Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations 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 in this direct final rule will result in more stringent requirements for cranes and derricks used in demolition and underground construction work. Therefore, when OSHA promulgates a new final rule, states and territories with approved State Plans must adopt comparable amendments to their standards for cranes and derricks used in demolition and underground construction within six months of OSHA’s promulgation of the final rule (i.e., the date OSHA publishes confirmation of the effective date) unless they demonstrate that such a change is not necessary because their existing standards are already the same, or at least as effective, as OSHA’s new final rule. tkelley on DSK3SPTVN1PROD with RULES E. Unfunded Mandates Reform Act When OSHA issued the final rule for cranes and derricks in construction, it reviewed the rule according to the Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq. (58 FR 58093)), and Executive Order 12875 (75 FR 48130). OSHA concluded that the final rule did not meet the definition of a ‘‘Federal intergovernmental mandate’’ under the UMRA because OSHA 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, but that its final economic analysis met that requirement. As discussed above in Section IV.A (Final Economic Analysis and Final Regulatory Flexibility Analysis) of this preamble, this direct final rule does not impose any costs on private-sector employers beyond those costs already taken into account in the final rule for cranes and derricks in construction. Because OSHA reviewed the total costs of this final rule under the UMRA, no further review of those costs is necessary. Therefore, 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. VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 F. Consultation and Coordination With Indian Tribal Governments OSHA reviewed this direct final rule in accordance with Executive Order 13175 (65 FR 67249) and determined that it does not have ‘‘tribal implications’’ as defined in that order. The 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. G. Legal Considerations The purpose of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) 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). A safety or health standard is a standard ‘‘which 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 or places of employment.’’ 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate within the meaning of Section 652(8) when a significant risk of material harm exists in the workplace and the standard would substantially reduce or eliminate that workplace risk. See Industrial Union Department, AFL–CIO v. American Petroleum Institute, 448 U.S. 607 (1980). In the cranes and derricks final rule, OSHA made such a determination with respect to the use of cranes and derricks in construction at the same time that it noted that the Agency would apply subpart CC to the activities addressed in this direct final rule (75 FR 47913, 47920–21). This direct final rule will not reduce the employee protections put into place by the standard OSHA is updating under this rulemaking. Instead, this rulemaking likely will enhance employee safety by ensuring that the construction workers involved in demolition and underground construction receive the same safety protections from recently published subpart CC as other construction workers. The revisions also will benefit construction contractors that engage in underground construction or demolition work in addition to other types of construction work, because these contractors will now be subject to a PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 single standard rather than having some of their construction work under subpart CC, and other work covered by existing subpart DD. This action, therefore, will clarify employer obligations by avoiding the confusion that would result if subpart CC covers part of a project and existing subpart DD covers another part of the project. Accordingly, it is unnecessary to make a separate determination of significant risk, or the extent to which this rule would reduce that risk, as typically required by the Industrial Union Department. List of Subjects in 29 CFR Part 1926 Construction industry, Demolition, Occupational safety and health, Safety, Underground construction. 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 August 8, 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 S—Underground Construction, Caissons, Cofferdams, and Compressed Air 1. Revise the authority citation for subpart S of 29 CFR part 1926 to read as follows: ■ Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and Secretary of Labor’s Orders 12– 71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 5–2007 (72 FR 31159), or 1–2012 (77 FR 3912), as applicable. 2. Amend § 1926.800 by revising paragraph (t) to read as follows: ■ § 1926.800 Underground construction. * * * * * (t) Hoisting unique to underground construction. Except as modified by this paragraph (t), employers must: Comply with the requirements of subpart CC of E:\FR\FM\17AUR1.SGM 17AUR1 tkelley on DSK3SPTVN1PROD with RULES Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations this part, except that the limitation in § 1926.1431(a) does not apply to the routine access of employees to an underground worksite via a shaft; ensure that material hoists comply with § 1926.552(a) and (b) of this part; and ensure that personnel hoists comply with the personnel-hoists requirements of § 1926.552(a) and (c) of this part and the elevator requirements of § 1926.552(a) and (d) of this part. (1) General requirements for cranes and hoists. (i) Materials, tools, and supplies being raised or lowered, whether within a cage or otherwise, shall be secured or stacked in a manner to prevent the load from shifting, snagging or falling into the shaft. (ii) A warning light suitably located to warn employees at the shaft bottom and subsurface shaft entrances shall flash whenever a load is above the shaft bottom or subsurface entrances, or the load is being moved in the shaft. This paragraph does not apply to fully enclosed hoistways. (iii) Whenever a hoistway is not fully enclosed and employees are at the shaft bottom, conveyances or equipment shall be stopped at least 15 feet (4.57 m) above the bottom of the shaft and held there until the signalman at the bottom of the shaft directs the operator to continue lowering the load, except that the load may be lowered without stopping if the load or conveyance is within full view of a bottom signalman who is in constant voice communication with the operator. (iv)(A) Before maintenance, repairs, or other work is commenced in the shaft served by a cage, skip, or bucket, the operator and other employees in the area shall be informed and given suitable instructions. (B) A sign warning that work is being done in the shaft shall be installed at the shaft collar, at the operator’s station, and at each underground landing. (v) Any connection between the hoisting rope and the cage or skip shall be compatible with the type of wire rope used for hoisting. (vi) Spin-type connections, where used, shall be maintained in a clean condition and protected from foreign matter that could affect their operation. (vii) Cage, skip, and load connections to the hoist rope shall be made so that the force of the hoist pull, vibration, misalignment, release of lift force, or impact will not disengage the connection. Moused or latched openthroat hooks do not meet this requirement. (viii) When using wire rope wedge sockets, means shall be provided to prevent wedge escapement and to VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 ensure that the wedge is properly seated. (2) Additional requirements for cranes. Cranes shall be equipped with a limit switch to prevent overtravel at the boom tip. Limit switches are to be used only to limit travel of loads when operational controls malfunction and shall not be used as a substitute for other operational controls. (3) Additional requirements for hoists. (i) Hoists shall be designed so that the load hoist drum is powered in both directions of rotation, and so that brakes are automatically applied upon power release or failure. (ii) Control levers shall be of the ‘‘deadman type’’ which return automatically to their center (neutral) position upon release. (iii) When a hoist is used for both personnel hoisting and material hoisting, load and speed ratings for personnel and for materials shall be assigned to the equipment. (iv) Material hoisting may be performed at speeds higher than the rated speed for personnel hoisting if the hoist and components have been designed for such higher speeds and if shaft conditions permit. (v) Employees shall not ride on top of any cage, skip or bucket except when necessary to perform inspection or maintenance of the hoisting system, in which case they shall be protected by a body belt/harness system to prevent falling. (vi) Personnel and materials (other than small tools and supplies secured in a manner that will not create a hazard to employees) shall not be hoisted together in the same conveyance. However, if the operator is protected from the shifting of materials, then the operator may ride with materials in cages or skips which are designed to be controlled by an operator within the cage or skip. (vii) Line speed shall not exceed the design limitations of the systems. (viii) Hoists shall be equipped with landing level indicators at the operator’s station. Marking the hoist rope does not satisfy this requirement. (ix) Whenever glazing is used in the hoist house, it shall be safety glass, or its equivalent, and be free of distortions and obstructions. (x) A fire extinguisher that is rated at least 2A:10B:C (multi-purpose, dry chemical) shall be mounted in each hoist house. (xi) Hoist controls shall be arranged so that the operator can perform all operating cycle functions and reach the emergency power cutoff without having to reach beyond the operator’s normal operating position. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 49729 (xii) Hoists shall be equipped with limit switches to prevent overtravel at the top and bottom of the hoistway. (xiii) Limit switches are to be used only to limit travel of loads when operational controls malfunction and shall not be used as a substitute for other operational controls. (xiv) Hoist operators shall be provided with a closed-circuit voice communication system to each landing station, with speaker microphones so located that the operator can communicate with individual landing stations during hoist use. (xv) When sinking shafts 75 feet (22.86 m) or less in depth, cages, skips, and buckets that may swing, bump, or snag against shaft sides or other structural protrusions shall be guided by fenders, rails, ropes, or a combination of those means. (xvi) When sinking shafts more than 75 feet (22.86 m) in depth, all cages, skips, and buckets shall be rope or rail guided to within a rail length from the sinking operation. (xvii) Cages, skips, and buckets in all completed shafts, or in all shafts being used as completed shafts, shall be rope or rail-guided for the full length of their travel. (xviii) Wire rope used in load lines of material hoists shall be capable of supporting, without failure, at least five times the maximum intended load or the factor recommended by the rope manufacturer, whichever is greater. Refer to § 1926.552(c)(14)(iii) of this part for design factors for wire rope used in personnel hoists. The design factor shall be calculated by dividing the breaking strength of wire rope, as reported in the manufacturer’s rating tables, by the total static load, including the weight of the wire rope in the shaft when fully extended. (xix) A competent person shall visually check all hoisting machinery, equipment, anchorages, and hoisting rope at the beginning of each shift and during hoist use, as necessary. (xx) Each safety device shall be checked by a competent person at least weekly during hoist use to ensure suitable operation and safe condition. (xxi) In order to ensure suitable operation and safe condition of all functions and safety devices, each hoist assembly shall be inspected and loadtested to 100 percent of its rated capacity: at the time of installation; after any repairs or alterations affecting its structural integrity; after the operation of any safety device; and annually when in use. The employer shall prepare a certification record which includes the date each inspection and load-test was performed; the signature of the person E:\FR\FM\17AUR1.SGM 17AUR1 tkelley on DSK3SPTVN1PROD with RULES 49730 Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Rules and Regulations who performed the inspection and test; and a serial number or other identifier for the hoist that was inspected and tested. The most recent certification record shall be maintained on file until completion of the project. (xxii) Before hoisting personnel or material, the operator shall perform a test run of any cage or skip whenever it has been out of service for one complete shift, and whenever the assembly or components have been repaired or adjusted. (xxiii) Unsafe conditions shall be corrected before using the equipment. (4) Additional requirements for personnel hoists. (i) Hoist drum systems shall be equipped with at least two means of stopping the load, each of which shall be capable of stopping and holding 150 percent of the hoist’s rated line pull. A broken-rope safety, safety catch, or arrestment device is not a permissible means of stopping under this paragraph. (ii) The operator shall remain within sight and sound of the signals at the operator’s station. (iii) All sides of personnel cages shall be enclosed by one-half inch (12.70 mm) wire mesh (not less than No. 14 gauge or equivalent) to a height of not less than 6 feet (1.83 m). However, when the cage or skip is being used as a work platform, its sides may be reduced in height to 42 inches (1.07 m) when the conveyance is not in motion. (iv) All personnel cages shall be provided with a positive locking door that does not open outward. (v) All personnel cages shall be provided with a protective canopy. The canopy shall be made of steel plate, at least 3/16-inch (4.763 mm) in thickness, or material of equivalent strength and impact resistance. The canopy shall be sloped to the outside, and so designed that a section may be readily pushed upward to afford emergency egress. The canopy shall cover the top in such a manner as to protect those inside from objects falling in the shaft. (vi) Personnel platforms operating on guide rails or guide ropes shall be equipped with broken-rope safety devices, safety catches or arrestment devices that will stop and hold 150 percent of the weight of the personnel platform and its maximum rated load. (vii) During sinking operations in shafts where guides and safeties are not yet used, the travel speed of the personnel platform shall not exceed 200 feet (60.96 m) per minute. Governor controls set for 200 feet (60.96 m) per minute shall be installed in the control system and shall be used during personnel hoisting. VerDate Mar<15>2010 16:43 Aug 16, 2012 Jkt 226001 (viii) The personnel platform may travel over the controlled length of the hoistway at rated speeds up to 600 feet (182.88 m) per minute during sinking operations in shafts where guides and safeties are used. (ix) The personnel platform may travel at rated speeds greater than 600 feet (182.88 m) per minute in completed shafts. * * * * * Subpart T—Demolition. 3. Revise the authority citation for subpart T of 29 CFR part 1926 to read as follows: ■ Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and Secretary of Labor’s Orders 12– 71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 5–2007 (72 FR 31159), or 1–2012 (77 FR 3912), as applicable. 4. Amend § 1926.856 by revising paragraph (c) to read as follows: ■ § 1926.856 Removal of walls, floors, and material with equipment. * * * * * (c) Cranes, derricks, and other mechanical equipment used must meet the requirements specified in subparts N, O, and CC of this part. ■ 5. Amend § 1926.858 by revising paragraph (b) to read as follows: § 1926.858 Removal of steel construction. * * * * * (b) Cranes, derricks, and other hoisting equipment used must meet the requirements specified in subparts N and CC of this part. * * * * * Subpart DD—[Removed] ■ 6. Remove subpart DD. [FR Doc. 2012–20171 Filed 8–16–12; 8:45 am] BILLING CODE 4510–26–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG–2012–0043] RIN 1625–AA00 Safety Zone; Antique Boat Show, Niagara River, Grand Island, NY Coast Guard, DHS. ACTION: Temporary final rule. AGENCY: The Coast Guard will establish a temporary safety zone on SUMMARY: PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 Niagara River, Grand Island, NY. This safety zone is intended to restrict vessels from a portion of the Niagara River during the Antique Boat Show powerboat races. This safety zone is necessary to protect spectators, participants, and vessels from the hazards associated with powerboat races. DATES: This regulation will be effective on September 8, 2012 from 9:30 a.m. until 4:30 p.m. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket USCG–2012–0043 and are available online at www.regulations.gov. This material is also available for inspection or copying at two locations: The Docket Management Facility (M– 30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays and the U.S. Coast Guard Sector Lake Michigan, 2420 South Lincoln Memorial Drive, Milwaukee, WI 53207, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email LT Christopher Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector Buffalo; telephone 716– 843–9343, email SectorBuffaloMarineSafety@uscg.mil. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366– 9826. SUPPLEMENTARY INFORMATION: Regulatory Information On March 7, 2012, we published a notice of proposed rulemaking entitled Safety Zone; Antique Boat Show, Niagara River, Grand Island, NY in the Federal Register (77 FR 13516). We received 0 letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Due to the date of the event, waiting for 30 day notice period run would be impracticable. Background and Purpose Between 10 a.m. and 4 p.m. on Sept. 8, 2012 a series of hydroplane and power boat races will take place on the Niagara River near Grand Island, NY. E:\FR\FM\17AUR1.SGM 17AUR1

Agencies

[Federal Register Volume 77, Number 160 (Friday, August 17, 2012)]
[Rules and Regulations]
[Pages 49722-49730]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20171]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0066]
RIN 1218-AC61


Cranes and Derricks in Construction: Demolition and Underground 
Construction

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

ACTION: Direct final rule.

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SUMMARY: On August 9, 2010, OSHA issued a final standard updating the 
requirements for cranes and derricks used in construction work. For 
most construction work, the final rule replaced a prior cranes and 
derricks standard. However, the prior standard continues to apply to 
demolition and underground construction work. Through this direct final 
rule, OSHA is applying the updated requirements to that work. With this 
direct final rule, OSHA also is correcting inadvertent errors made to 
the demolition and underground construction standards when it issued 
the final rule for cranes and derricks in construction.

DATES: This direct final rule will become effective on November 15, 
2012 unless OSHA receives a significant adverse comment to this direct 
final rule or the companion proposal by September 17, 2012. If OSHA 
receives adverse comment, it will publish a timely withdrawal of the 
rule in the Federal Register. Submit comments to this direct final 
rule, including comments to the information-collection (paperwork) 
determination (described under the section titled AGENCY 
DETERMINATIONS), hearing requests, and other information by September 
17, 2012. All submissions must bear a postmark or provide other 
evidence of the submission date.

ADDRESSES: Submit comments, hearing requests, and other material, 
identified by Docket No. OSHA-2007-0066, by any of the following 
methods:
    Electronically: Submit comments and attachments, as well as hearing 
requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow 
the instructions online for submitting comments. Please note that this 
docket may include several different Federal Register notices involving 
active rulemakings, so selecting the correct notice or its ID number 
when submitting comments for this rulemaking is extremely important. 
After accessing the docket (OSHA-2007-0066), look for the name of this 
rulemaking (Cranes and Derricks in Construction: Demolition and 
Underground Construction) in the column labeled ``Title.''
    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, 
subject, the title of the rulemaking (Cranes and Derricks in 
Construction: Demolition and Underground Construction) and the docket 
number (OSHA-2007-0066) so that the Docket Office can attach them to 
the appropriate document.
    Regular mail, express delivery, hand (courier) delivery, and 
messenger service: Submit comments and any additional material to the 
OSHA Docket Office, RIN No. 1218-AC61, 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 
delivery, hand delivery, and messenger service. The Docket Office will 
accept deliveries (express delivery, hand delivery, messenger service) 
during the Docket Office's normal business hours, 8:15 a.m. to 4:45 
p.m., e.t.
    Instructions: All submissions must include the Agency's name, the 
title of the rulemaking (Cranes and Derricks in Construction: 
Demolition and Underground Construction), and the docket number (i.e., 
OSHA Docket No. OSHA-2007-0066). OSHA will place comments and other 
material, including

[[Page 49723]]

any personal information, in the public docket without revision, and 
the comments and other material will be available online at http://www.regulations.gov. Therefore, OSHA cautions commenters about 
submitting statements they do not want made available to the public, or 
submitting comments that contain personal information (either about 
themselves or others) such as Social Security numbers, birth dates, and 
medical data.
    Docket: To read or download comments or other material in the 
docket, go to http://www.regulations.gov or to the OSHA Docket Office 
at the above address. The electronic docket for this direct final rule 
established at http://www.regulations.gov lists most of the documents 
in the docket. 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, OSHA Office of Communications, Room N-
3647, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone: (202) 693-1999.
    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.
    Copies of this Federal Register notice and news releases: 
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 Amendments
    A. Background
    B. Demolition Work
    C. Underground Construction
    D. Rationale for Extending Subpart CC to Demolition and 
Underground Construction
IV. Agency Determinations
    A. Final Economic Analysis and Final Regulatory Flexibility 
Analysis
    B. Paperwork Reduction Act of 1995
    C. Federalism
    D. State Plan States
    E. Unfunded Mandates Reform Act
    F. Consultation and Coordination With Indian Tribal Governments
    G. Legal Considerations
List of Subjects in 29 CFR Part 1926
Authority and Signature
Amendments to Standards

I. Request for Comment

    OSHA requests comment 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 to either the direct final rule or the companion 
proposed rule, 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 
this Federal Register. Such confirmation may include minor stylistic or 
technical changes to the document. For the purpose of judicial review, 
OSHA considers 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 become 
effective 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 agency 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 uses direct final rulemaking 
when it anticipates that a rule will not be controversial.
    OSHA is publishing a companion proposed rule along with this direct 
final rule in the ``Proposed Rules'' section of today's Federal 
Register. For purposes of this direct final rule, a significant adverse 
comment is one that explains why the amendments to OSHA's underground 
construction and demolition standards 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.
    The comment period for the proposed rule runs concurrently with 
that of the direct final rule. OSHA will treat comments received on the 
companion proposed rule as comments regarding the direct final rule. 
OSHA also will consider significant adverse comment submitted to the 
direct final rule as comment to the companion proposed rule. 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 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. Under the final rule for cranes and derricks 
in construction, most construction work involving cranes and derricks 
falls under new subpart CC of 29 CFR 1926, but underground construction 
and demolition remain covered under the former rule (i.e., Sec.  
1926.550). These amendments will result in the new subpart CC covering 
all construction operations, thereby improving worker safety because 
the new rule provides better protection to workers than the former 
rule. Moreover, these amendments will facilitate employer compliance by 
having all construction operations involving cranes and derricks 
subject to a single rule rather than by having a few operations subject 
to a different rule. In addition, this direct final rule corrects 
inadvertent errors made to the standards for underground construction 
and demolition when OSHA issued the final cranes rule. Therefore, OSHA 
does not expect objections from the public to this rulemaking action. 
Accordingly, the Agency believes the regulated community will welcome 
this effort to harmonize the requirements regulating crane and derrick 
operations in underground construction and demolition, and to remove 
errors that hinder interpretation and proper application of existing 
standards.

III. Discussion of Amendments

A. Background

    OSHA designed the final rule for cranes and derricks in 
construction, codified at 29 CFR part 1926, subpart CC, to replace the 
earlier rule

[[Page 49724]]

(Sec.  1926.550) for all construction work.\1\ In proposing the new 
cranes and derricks rule, OSHA explained that the rule's purpose was 
``to protect employees from the hazards associated with hoisting 
equipment when used to perform construction activities'' (73 FR 59714). 
Because OSHA developed the new rule to supplant the former rule 
entirely, OSHA proposed to remove and reserve Sec.  1926.550 (73 FR 
59915). When other OSHA construction standards referred to Sec.  
1926.550 directly, or indirectly, as part of subpart N, OSHA proposed 
to amend those provisions to refer instead to the new requirements in 
subpart CC (73 FR 59914-15).
---------------------------------------------------------------------------

    \1\ OSHA published the final rule at 75 FR 47906 (Aug. 9, 2010).
---------------------------------------------------------------------------

    In the proposed rule for cranes and derricks in construction, OSHA 
inadvertently did not propose to amend three provisions that referred 
to subpart N and encompassed the requirements of Sec.  1926.550. These 
provisions included two provisions applicable to demolition work (Sec.  
1926.856(c) and Sec.  1926.858(b)), and one provision applicable to 
underground construction work (Sec.  1926.800(t)). When it issued the 
final rule, OSHA noted concerns about potentially inadequate notice to 
the public regarding any effort to amend these provisions in the final 
rule; consequently, OSHA decided not to amend these provisions in the 
final rule. OSHA instead stated that it would revisit the issue later 
(75 FR 47920-21).
    Having removed the requirements of Sec.  1926.550 in the final 
rule, OSHA had to reestablish the substance of the demolition and 
underground construction provisions in a new subpart DD in the final 
rule, redesignate Sec.  1926.550 as Sec.  1926.1501 of subpart DD, and 
amend the demolition and underground construction provisions that 
previously referred to subpart N to refer instead to the new subpart 
DD. OSHA provided in Sec.  1926.1500 of subpart DD that ``[t]his 
subpart applies in lieu of Sec.  1926 subpart CC.'' However, in making 
these revisions, OSHA inadvertently made changes to the demolition and 
underground construction provisions that modified the meaning of these 
provisions. In addition, the Code of Federal Regulations eliminated all 
of the subparagraphs of Sec.  1926.800(t), except for the introductory 
paragraph, because of a technical error in the draft regulatory 
language.
    This direct final rule, therefore, will accomplish two goals. 
First, it will bring all crane and derrick use in construction work 
under new subpart CC. Second, it will correct the errors in the final 
rule that substantively altered the demolition and underground 
construction provisions, and replace subparagraphs Sec.  1926.800(t)(1) 
through (4). Below, OSHA describes the amendments to the demolition and 
underground construction standards that OSHA made in the final rule for 
cranes and derricks in construction (including inadvertent errors), as 
well as the revisions and corrections to these standards made by OSHA 
under this direct final rule.

B. Demolition Work

    Before OSHA issued the final rule for cranes and derricks in 
construction, Sec.  1926.856(c) stated, ``Mechanical equipment used 
shall meet the requirements specified in subparts N and O of this 
part,'' and Sec.  1926.858(b) read, ``Cranes, derricks, and other 
hoisting equipment used shall meet the requirements specified in 
subpart N of this part.'' In the final rule for cranes and derricks in 
construction, OSHA established a new subpart DD, redesignated the prior 
cranes and derricks rule (Sec.  1926.550) as Sec.  1926.1501 of subpart 
DD, and amended Sec.  1926.856(c) to require compliance with the new 
subpart DD, in addition to the remaining requirements of subparts N and 
O. OSHA also amended Sec.  1926.858(b) to require compliance with new 
subpart DD instead of subpart N.
    It was OSHA's expressed purpose not to make substantive revisions 
to the requirements of these two sections in the final rule.\2\ 
Nevertheless, OSHA made an inadvertent substantive change to Sec.  
1926.858(b).\3\ That section originally incorporated all requirements 
of subpart N for ``cranes, derricks, and other hoisting equipment,'' 
not just the requirements of subpart N's cranes and derricks standard 
at Sec.  1926.550. However, the final rule did not reference other 
requirements of subpart N that pertain to demolition work, which 
include the requirements of Sec.  1926.552 (Material hoists, personnel 
hoists, and elevators) and Sec.  1926.554 (Overhead hoists). As a 
result, the amendment had the effect of deleting the requirement for 
employers engaged in demolition work to comply with Sec. Sec.  1926.552 
and 1926.554. Therefore, to cover all construction work under subpart 
CC, and to correct these errors, OSHA is amending Sec. Sec.  
1926.856(c) and 1926.858(b) by replacing the requirements to comply 
with subpart DD with requirements to comply with subpart CC, and is 
amending Sec.  1926.858(b) by reinstating the requirement to comply 
with subpart N as well.
---------------------------------------------------------------------------

    \2\ OSHA explained in the preamble to the final rule that the 
``redesignation of Sec.  1926.550 and the replacement of references 
[to subpart N] do not alter any of the substantive requirements of 
Sec. Sec.  1926.856(c) and 1926.858(b)'' (75 FR 47921).
    \3\ OSHA also inadvertently listed the heading of Sec.  1926.858 
as ``Removal of walls, floors and materials with equipment'' (the 
same heading as Sec.  1926.856), instead of ``Removal of steel 
construction,'' but this erroneous heading did not appear in the 
subsequent edition of the Code of Federal Regulations. Therefore, 
OSHA finds no need to address this error in this rulemaking.
---------------------------------------------------------------------------

C. Underground Construction

    Section 1926.800(t) contains requirements for hoisting that are 
unique to underground construction. Before OSHA issued the final rule 
for cranes and derricks in construction, the previous version of Sec.  
1926.800(t) contained an introductory paragraph that cross-referenced 
other OSHA standards that apply to hoisting in underground 
construction; these cross-references consisted of the requirements of 
the prior cranes and derricks rule at Sec.  1926.550, including most of 
Sec.  1926.550(g) (the provision of the prior rule that applied to 
hoisting personnel), and requirements for material hoists, personnel 
hoists, and elevators at Sec.  1926.552(a) through (d). Previous Sec.  
1926.800(t) included one substantive modification to the requirements 
of prior Sec.  1926.550(g)(2): employers could use cranes to hoist 
employees for routine access to underground worksites via a shaft 
without showing that conventional means would be more hazardous, or not 
possible, for this purpose due to structural design or worksite 
conditions.\4\ When it issued the underground construction rule, OSHA 
included this modification because hoisting personnel for routine 
access to the underground worksites via a shaft occurs under more 
controlled, and less hazardous, conditions than hoisting personnel in 
general (54 FR 23824, 23845). Previous Sec.  1926.800(t)(1) through (4) 
contained additional requirements for hoisting unique to underground 
construction. Language at the beginning of the introductory paragraph 
of Sec.  1926.800(t), ``Except as modified by this paragraph (t),'' 
clarified that the requirements and exceptions in 1926.800(t)(1) 
through (4) take precedence over the cross-referenced requirements, 
including the former cranes standard under Sec.  1926.550.
---------------------------------------------------------------------------

    \4\ Prior Sec.  1926.550(g)(2) required employers to show, 
before using cranes to hoist personnel to a worksite, that 
conventional means would be more hazardous than cranes, or not 
possible, due to structural design or worksite conditions.
---------------------------------------------------------------------------

    In the final cranes rule, OSHA redesignated the prior cranes and 
derricks rule as Sec.  1926.1501 of subpart DD. It was OSHA's expressed 
purpose to

[[Page 49725]]

preserve the existing crane requirements for underground construction 
by changing references in the introductory paragraph of Sec.  
1926.800(t) from Sec.  1926.550 and Sec.  1926.500(g)(2) to Sec.  
1926.1501 and Sec.  1926.1501(g)(2), respectively. OSHA clarified this 
purpose in the preamble to the final rule by stating that the revisions 
to Sec.  1926.800(t) ``do not alter any of the substantive requirements 
of Sec.  1926.800(t)'' (75 FR 47920). However, OSHA inadvertently 
changed Sec.  1926.800(t) by amending the introductory paragraph to 
require employers engaged in underground construction to comply only 
with new Sec.  1926.1501(g) (which duplicated Sec.  1926.550(g)), 
instead of preserving the former routine-access exemption by requiring 
compliance with Sec.  1926.1501 in its entirety, and modifying the 
requirements of Sec.  1926.1501(g)(2) (which duplicated former Sec.  
1926.550(g)(2)).\5\ Additionally, OSHA inadvertently moved the language 
``Except as modified by paragraph (t)'' to the beginning of the second 
sentence of the introductory paragraph so that it no longer applied to 
the cross-referenced Sec.  1926.1501 requirements, but instead only 
applied to the cross-referenced requirements in Sec.  1926.552(a) 
through (d). Finally, although OSHA did not plan to alter any of the 
(then remaining) requirements and exemptions of Sec.  1926.800(t)(1) 
through (4), but only to amend the introductory paragraph, a technical 
error in the instructions to the Federal Register resulted in the 
deletion of subparagraphs Sec.  1926.800(t)(1) through (4). The 
deletion was not mentioned in the preamble to the final cranes rule.
---------------------------------------------------------------------------

    \5\ OSHA stated in the final rule that it was including the 
reference to Sec.  1926.1501(g) to avoid any potential notice 
problem that may arise if OSHA substituted a reference to subpart CC 
in place of the prior reference to Sec.  1926.550(g) (75 FR 47920).
---------------------------------------------------------------------------

    As amended by the final cranes rule, Sec.  1926.800(t) presents 
four problems. First, the prior version of Sec.  1926.800(t) 
incorporated all of Sec.  1926.550, not just Sec.  1926.550(g). 
However, the amended version of Sec.  1926.800(t) refers only to Sec.  
1926.1501(g), the successor to Sec.  1926.550(g). Therefore, as now 
written, Sec.  1926.800(t) does not explicitly require employers to 
comply with either the final cranes rule or the prior rule at Sec.  
1926.550, except for Sec.  1926.1501(g), the prior rule's provision on 
hoisting personnel. Second, the exception from Sec.  1926.550(g)(2), 
specified in the former version of Sec.  1926.800(t), provided that 
employers could use cranes to hoist personnel for routine access to 
underground worksites via a shaft without showing that other means of 
access are more hazardous or impossible. OSHA did not include this 
exception in the new version of Sec.  1926.800(t). This inadvertent 
error places an additional and unnecessary burden on employers that use 
cranes for this purpose. Third, moving the text ``Except as modified by 
paragraph (t)'' to the beginning of the second sentence of the 
introductory paragraph of Sec.  1926.800(t) results in ambiguity as to 
the relationship between incorporated crane requirements and the 
provisions in Sec.  1926.800(t)(1) through (4). Finally, the 
inadvertent elimination of Sec.  1926.800(t)(1) through (4) from the 
Code of Federal Regulations resulted in eliminating requirements that 
OSHA adopted in a 1989 rulemaking (54 FR 23843) to ensure that 
employees engaged in underground construction receive adequate 
protection from hazards unique to hoisting in this setting.
    In this direct final rule, OSHA is amending Sec.  1926.800(t) to 
extend subpart CC to underground construction, and to resolve the 
technical errors set forth in this section. OSHA is amending the 
introductory paragraph of Sec.  1926.800(t) to restore the provision 
allowing employers to use cranes to hoist personnel for routine access 
to the underground worksites via a shaft without the need to show that 
conventional means of access are more hazardous or impossible for this 
purpose. This amendment excepts routine access of employees to an 
underground worksite via a shaft from the requirements of Sec.  
1926.1431(a). The requirements of Sec.  1926.1431(a) are virtually 
identical to the requirements of Sec.  1926.550(g)(2). In addition, 
OSHA is amending Sec.  1926.800(t) by restoring the clause ``Except as 
modified by this paragraph (t)'' to the beginning of the introductory 
paragraph, and restoring Sec.  1926.800(t)(1) through (4). OSHA is also 
revising the language in the introductory paragraph for clarity, and is 
correcting three minor grammatical errors that appeared in the text of 
paragraphs Sec.  1926.800(t)(3)(vi), (t)(4)(iii), and (t)(4)(iv), as 
previously published in the Code of Federal Regulations.

D. Rationale for Extending Subpart CC to Demolition and Underground 
Construction

    The revisions made by this direct final rule will enable OSHA to 
cover all cranes and derricks used in construction under subpart CC. 
These revisions implement the original purpose of the rule and will 
benefit both employees and employers. These revisions will ensure that 
the significant benefits of subpart CC, which include saving 22 lives 
per year and preventing 175 non-fatal injuries per year compared to 
prior Sec.  1926.550 (75 FR 48079), extend to demolition and 
underground construction. Accordingly, applying subpart CC to 
demolition and underground construction will ensure that construction 
workers in those sectors receive the same safety protections from new 
subpart CC as other construction workers.
    The revisions also will benefit construction contractors that 
engage in underground construction or demolition work, in addition to 
other types of construction work, because these contractors will now be 
subject to a single standard rather than having some of their 
activities covered under subpart CC and other work covered by subpart 
DD. This action will avoid the confusion that would result if new 
subpart CC covers part of a project and revised Sec.  1926.800(t) 
covers another part of the project. For example, in a cut-and-cover 
tunneling project, the underground construction standard applies only 
after covering the excavation in such a manner as to establish 
conditions characteristic of underground construction. 29 CFR 
1926.800(a). Therefore, under the current requirements, subpart CC 
would apply to the work while the excavation is open, but after 
covering the excavation, subpart DD would apply, thereby resulting in 
the same crane or derrick being subject to different standards during 
different phases of the project. Finally, this action will facilitate 
employer compliance because demolition and underground construction 
contractors will no longer be subject to the outdated requirements in 
prior Sec.  1926.550, which relied heavily on pre-1970 consensus 
standards.

IV. Agency Determinations

A. Final Economic Analysis and Final Regulatory Flexibility Analysis

    When it issued the final cranes rule, 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 Order 
12866 (58 FR 51735). OSHA also published a Final Regulatory Flexibility 
Analysis (FRFA) as required by the Regulatory Flexibility Act (5 U.S.C. 
601-612). OSHA's approach to estimating costs and economic impacts in 
these analyses began by estimating, for all construction sectors, the 
total number of cranes and whether they were owned and rented;

[[Page 49726]]

owned without rental; or leased. As a result, both analyses covered all 
cranes engaged in construction activities, including cranes engaged in 
underground construction and cranes engaged in construction work 
involving demolition. The FEA for the final cranes standard, which 
included all cranes, crane operations, and industry sectors subject to 
this direct final rule, found that the requirements of the rule were 
technologically and economically feasible.
    Because the FEA drew these conclusions from calculations 
encompassing all of the underground construction and demolition crane 
operations covered by this direct final rule, the conclusions in the 
earlier FEA are valid for this direct final rule. The reference to the 
FEA for the final cranes rule, therefore, establishes that this direct 
final rule is technologically and economically feasible, addresses 
significant risks, and reduces those risks significantly. The FEA, 
which OMB reviewed, meets the requirements of Executive Orders 12866 
and Executive Order 13563 with respect to the operations covered by 
this direct final rule; OSHA included these operations in the FEA for 
the final cranes standard. Therefore, OSHA believes that that this 
direct final rule also complies with Executive Orders 12866 and 
Executive Order 13563.
    To determine if this direct final rule has annual costs of greater 
than $100 million, or would have a significant economic impact on a 
substantial number of small firms, OSHA examined the sectors most 
affected by this direct final rule. This direct final rule affects two 
construction sectors: NAICS 237990 (Other Heavy and Civil Engineering 
Construction), which includes all establishments engaged in underground 
construction, and NAICS 238910 (Site Preparation Contractors), which 
includes all establishments engaged in demolition. This analysis, 
therefore, reviews the results for these two sectors reported in the 
final crane standard's FEA, which the Federal Register published on 
August 9, 2010.
    That FEA simply considered all cranes and crane operations in these 
sectors, and did not analyze separately those operations involving 
underground construction or demolitions because OSHA planned to apply 
subpart CC to these operations. OSHA will report here the results for 
these entire sectors, which will inevitably involve greater costs and 
impacts than for the activities addressed in this direct final rule 
because both sectors have many cranes and crane jobs that do not 
involve underground construction or demolition activities. Table B-9 of 
the FEA showed that NAICS 237990, which includes all crane operations 
involved in underground construction operations, had annualized 
compliance costs of $1,903,569 for firms that own and rent cranes, 
$205,532 for firms that own, but do not rent cranes, and $1,151,759 for 
firms that lease cranes, for total annualized costs of $3,260,860 (75 
FR 48102-48105). Table B-9 also showed that NAICS 238910, which 
contains all crane operations involving demolitions, had annualized 
compliance costs of $1,232,974 for firms that own and rent cranes, 
$292,601 for firms that own, but do not rent cranes, and $1,626,463 for 
firms that lease cranes, for total annualized compliance costs of 
$3,152,038. The total annualized compliance costs for both sectors are 
$6,412,898. Because these two NAICS sectors include operations not 
involved in underground construction or demolition, the total estimated 
annualized compliance costs of $6,412,898 for these two sectors will be 
greater than the actual costs of this direct final rule. Based on these 
costs, OSHA concludes that this direct final rule is not a significant 
rule under either E.O. 12866 or the Unfunded Mandates Act.
    With respect to technological feasibility, the earlier FEA, which 
included consideration of both underground construction and demolition 
operations, noted:

    In accordance with the OSH Act, OSHA is required to demonstrate 
that occupational safety and health standards promulgated by the 
Agency are technologically feasible. Accordingly, OSHA reviewed the 
requirements that would be imposed by the final regulation, and 
assessed their technological feasibility. As a result of this 
review, OSHA has determined that compliance with the requirements of 
the final standard is technologically feasible for all affected 
industries. The standard would require employers to perform crane 
inspections, utilize qualified or certified crane operators, address 
ground conditions, maintain safe distances from power lines using 
the encroachment prevention precautions, and to fulfill other 
obligations under the standard. Compliance with all of these 
requirements can be achieved with readily and widely available 
technologies. Some businesses in the affected industries already 
implement the requirements of the standard to varying degrees (some 
states have requirements), as noted during the SBREFA Panel. OSHA 
believes that there are no technological constraints in complying 
with any of the proposed requirements, and received no comments that 
suggested that these standards were technologically infeasible.

(75 FR 48095).
    In Table B-12 of the FEA for the final cranes rule, OSHA examined 
the costs as a percentage of revenues and as a percentage of profits in 
these two sectors. This table shows that, for both sectors, the 
greatest potential impacts were on establishments that own and rent 
cranes with operators. This table showed that for NAICS 237990, which 
includes all underground construction operations, costs were 0.18 
percent (less than 1 percent) of revenues and 3.54 percent of profits. 
This table also showed that for NAICS 238910, including all demolition 
operations involving cranes, costs were 0.18 percent of revenues and 
4.05 percent of profits. (Table B-12 and the FEA as a whole provide the 
full calculations and derivations.) The FEA from the final cranes 
standard stated:

    The Agency concludes that the final standard is economically 
feasible for the affected industries. As described above, a standard 
is economically feasible if there is a reasonable likelihood that 
the estimated costs of compliance ``will not threaten the existence 
or competitive structure of an industry, even if it does portend 
disaster for some marginal firms.'' United Steelworkers of America 
v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980). The potential 
impacts on employer costs associated with achieving compliance with 
the final standard fall well within the bounds of economic 
feasibility in each industry sector. Costs of 0.2 percent of 
revenues and 4 percent of profits will not threaten the existence of 
the construction industry, affected general industry sectors, or the 
use of cranes in affected industry sectors. OSHA does not expect 
compliance with the requirements of the final standard to threaten 
the viability of employers or the competitive structure of any of 
the affected industry sectors. When viewed in the larger context of 
the construction sector, an increase in costs of $148.2 million a 
year is effectively negligible, and will have no noticeable effect 
on the demand for construction services. Even when viewed as an 
increase in the costs of using cranes, an increase in the cost of 
rentals services of 0.2 percent will not cause the construction 
industry to forego the use of cranes and, thus, put crane leasing 
firms out of business.

(75 FR 48112). Because the earlier FEA drew this conclusion with 
respect to costs that included the costs of this direct final rule, as 
well as other costs that made the impacts greater than those of this 
direct final rule, OSHA concludes that the FEA for the cranes and 
derricks final rule demonstrates that this direct final rule is 
economically feasible.
    Tables B-14 and B-15 of the FEA for the cranes and derricks final 
rule examined the costs as a percentage of revenues and as a percentage 
of profits in these two sectors for small firms as defined by SBA, and 
very small entities

[[Page 49727]]

with less than 20 employees, respectively. Because so many firms owning 
cranes are small, there is no appreciable difference between the 
impacts on small and very small firms versus the impacts for all firms 
already discussed. Comparison of the two tables shows that, for NAICS 
237990, the impacts for very small firms were equal to or greater than 
those for small firms. Table B-15 shows that, for NAICS 237990, costs 
were 0.18 percent of revenues and 3.54 per cent of profits. This table 
also shows that, for NAICS 238910, including all demolition operations 
involving cranes, there were no very small entities that owned and 
rented cranes, with the result that the greatest impacts are for small 
entities that own and rent crane where costs are 0.18 percent of 
revenues and 4.05 percent of profits.
    In its regulatory flexibility analysis, OSHA generally defines a 
significant economic impact on small entities as one with costs in 
excess of one percent of revenues or five percent of profits. The 
possible costs of this direct final rule clearly are well below these 
thresholds. OSHA, therefore, certifies that this direct final rule will 
not have a significant economic impact on a substantial number of small 
entities.

B. Paperwork Reduction Act of 1995

    When OSHA issued the final rule on August 9, 2010, it submitted an 
Information Collection Request (ICR) to the Office of Management and 
Budget (OMB) titled Cranes and Derricks in Construction (29 CFR Part 
1926, Subpart CC). This ICR \6\ covered all establishments in the 
construction industry, including all of the establishments in NAICS 
237990 and NAICS 238910. 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 the existing 
ICR. In addition, OSHA retitled the new ICR to Cranes and Derricks in 
Construction (29 CFR Part 1926, Subpart CC and Subpart DD).\7\
---------------------------------------------------------------------------

    \6\ The ICR is part of Exhibit 0425 in the docket for the final 
rule on cranes and derricks in construction (OSHA-2007-0066). It is 
available at www.regulations.gov and at www.reginfo.gov (OMB Control 
Number 1218-0261).
    \7\ The request and OMB approval for discontinuing the previous 
Cranes and Derricks in Construction ICR (OMB Control Number 1218-
0113) and the retitling of the ICR are available at www.reginfo.gov.
---------------------------------------------------------------------------

    This direct final rule requires no additional collection of 
information.\8\ OMB's approval of OSHA's ICR under Control Number 1218-
0261 already covers all collections of information required by this 
direct final rule, and OSHA does not believe it is necessary to submit 
a new ICR to OMB seeking to collect additional information under this 
direct final rule.
---------------------------------------------------------------------------

    \8\ Although the final rule for cranes and derricks in 
construction did not require employers covered by subpart DD to meet 
the information-exchange requirements of subpart CC, OSHA did not 
subtract these employers from its analysis of the burden and costs 
for these requirements in the paperwork analysis for subpart CC. 
Therefore, this approach inflated the burden and costs estimates of 
the ICR approved by OMB for subpart CC; however, the burden and 
costs estimates are accurate now that OSHA is applying subpart CC to 
underground construction and demolition work.
---------------------------------------------------------------------------

    Interested parties who comment on OSHA's determination that this 
proposal contains no additional paperwork requirements must send their 
written comments to the Office of Management and Budget, Attn: OMB Desk 
Officer for OSHA, Room 10235, 726 Jackson Place NW., Washington, DC 
20503. OSHA also encourages commenters to submit their comments on this 
paperwork determination to it, along with their other comments on the 
direct final rule.
    OSHA notes that a Federal agency cannot conduct or sponsor a 
collection of information unless OMB approves it under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the agency displays 
a currently valid OMB control number. The public need not respond to a 
collection of information requirement unless the agency displays a 
currently valid OMB control number, and, notwithstanding any other 
provision 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.

C. Federalism

    OSHA reviewed this direct final rule in accordance with the 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, 
August 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. States that 
obtain Federal approval for such a plan are referred to as ``State Plan 
States.'' 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. 
29 U.S.C. 667. 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 from its analysis that promulgation of 
subpart CC complies with Executive Order 13132. 75 FR 48128-29. That 
analysis applies to the extension of subpart CC to establishments 
engaged in demolition work and underground construction; therefore, 
this direct final rule complies with Executive Order 13132. In states 
without an OSHA-approved State Plan, any standard developed from this 
direct final rule would limit state policy options in the same manner 
as every standard promulgated by OSHA. In states with OSHA-approved 
State Plans, this rulemaking does not significantly limit state policy 
options.

D. State Plan States

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, State Plan States 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'' as the new Federal 
standard or amendment. 29 CFR 1953.5(a). The state standard must be at 
least as effective as the final Federal rule. State Plan States must 
adopt the Federal standard or complete their own 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,

[[Page 49728]]

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 in this direct final rule will result in more 
stringent requirements for cranes and derricks used in demolition and 
underground construction work. Therefore, when OSHA promulgates a new 
final rule, states and territories with approved State Plans must adopt 
comparable amendments to their standards for cranes and derricks used 
in demolition and underground construction within six months of OSHA's 
promulgation of the final rule (i.e., the date OSHA publishes 
confirmation of the effective date) unless they demonstrate that such a 
change is not necessary because their existing standards are already 
the same, or at least as effective, as OSHA's new final rule.

E. Unfunded Mandates Reform Act

    When OSHA issued the final rule for cranes and derricks in 
construction, it reviewed the rule according to the Unfunded Mandates 
Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq. (58 FR 58093)), and 
Executive Order 12875 (75 FR 48130). OSHA concluded that the final rule 
did not meet the definition of a ``Federal intergovernmental mandate'' 
under the UMRA because OSHA 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, but that its final economic analysis met that 
requirement.
    As discussed above in Section IV.A (Final Economic Analysis and 
Final Regulatory Flexibility Analysis) of this preamble, this direct 
final rule does not impose any costs on private-sector employers beyond 
those costs already taken into account in the final rule for cranes and 
derricks in construction. Because OSHA reviewed the total costs of this 
final rule under the UMRA, no further review of those costs is 
necessary. Therefore, 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.

F. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this direct final rule in accordance with Executive 
Order 13175 (65 FR 67249) and determined that it does not have ``tribal 
implications'' as defined in that order. The 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.

G. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.) 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). A 
safety or health standard is a standard ``which 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 or places of employment.'' 29 
U.S.C. 652(8). A standard is reasonably necessary or appropriate within 
the meaning of Section 652(8) when a significant risk of material harm 
exists in the workplace and the standard would substantially reduce or 
eliminate that workplace risk. See Industrial Union Department, AFL-CIO 
v. American Petroleum Institute, 448 U.S. 607 (1980). In the cranes and 
derricks final rule, OSHA made such a determination with respect to the 
use of cranes and derricks in construction at the same time that it 
noted that the Agency would apply subpart CC to the activities 
addressed in this direct final rule (75 FR 47913, 47920-21).
    This direct final rule will not reduce the employee protections put 
into place by the standard OSHA is updating under this rulemaking. 
Instead, this rulemaking likely will enhance employee safety by 
ensuring that the construction workers involved in demolition and 
underground construction receive the same safety protections from 
recently published subpart CC as other construction workers. The 
revisions also will benefit construction contractors that engage in 
underground construction or demolition work in addition to other types 
of construction work, because these contractors will now be subject to 
a single standard rather than having some of their construction work 
under subpart CC, and other work covered by existing subpart DD. This 
action, therefore, will clarify employer obligations by avoiding the 
confusion that would result if subpart CC covers part of a project and 
existing subpart DD covers another part of the project. Accordingly, it 
is unnecessary to make a separate determination of significant risk, or 
the extent to which this rule would reduce that risk, as typically 
required by the Industrial Union Department.

List of Subjects in 29 CFR Part 1926

    Construction industry, Demolition, Occupational safety and health, 
Safety, Underground construction.

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 August 8, 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 S--Underground Construction, Caissons, Cofferdams, and 
Compressed Air

0
1. Revise the authority citation for subpart S of 29 CFR part 1926 to 
read as follows:

    Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and 
Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 
9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 5-2007 (72 
FR 31159), or 1-2012 (77 FR 3912), as applicable.

0
2. Amend Sec.  1926.800 by revising paragraph (t) to read as follows:


Sec.  1926.800  Underground construction.

* * * * *
    (t) Hoisting unique to underground construction. Except as modified 
by this paragraph (t), employers must: Comply with the requirements of 
subpart CC of

[[Page 49729]]

this part, except that the limitation in Sec.  1926.1431(a) does not 
apply to the routine access of employees to an underground worksite via 
a shaft; ensure that material hoists comply with Sec.  1926.552(a) and 
(b) of this part; and ensure that personnel hoists comply with the 
personnel-hoists requirements of Sec.  1926.552(a) and (c) of this part 
and the elevator requirements of Sec.  1926.552(a) and (d) of this 
part.
    (1) General requirements for cranes and hoists. (i) Materials, 
tools, and supplies being raised or lowered, whether within a cage or 
otherwise, shall be secured or stacked in a manner to prevent the load 
from shifting, snagging or falling into the shaft.
    (ii) A warning light suitably located to warn employees at the 
shaft bottom and subsurface shaft entrances shall flash whenever a load 
is above the shaft bottom or subsurface entrances, or the load is being 
moved in the shaft. This paragraph does not apply to fully enclosed 
hoistways.
    (iii) Whenever a hoistway is not fully enclosed and employees are 
at the shaft bottom, conveyances or equipment shall be stopped at least 
15 feet (4.57 m) above the bottom of the shaft and held there until the 
signalman at the bottom of the shaft directs the operator to continue 
lowering the load, except that the load may be lowered without stopping 
if the load or conveyance is within full view of a bottom signalman who 
is in constant voice communication with the operator.
    (iv)(A) Before maintenance, repairs, or other work is commenced in 
the shaft served by a cage, skip, or bucket, the operator and other 
employees in the area shall be informed and given suitable 
instructions.
    (B) A sign warning that work is being done in the shaft shall be 
installed at the shaft collar, at the operator's station, and at each 
underground landing.
    (v) Any connection between the hoisting rope and the cage or skip 
shall be compatible with the type of wire rope used for hoisting.
    (vi) Spin-type connections, where used, shall be maintained in a 
clean condition and protected from foreign matter that could affect 
their operation.
    (vii) Cage, skip, and load connections to the hoist rope shall be 
made so that the force of the hoist pull, vibration, misalignment, 
release of lift force, or impact will not disengage the connection. 
Moused or latched open-throat hooks do not meet this requirement.
    (viii) When using wire rope wedge sockets, means shall be provided 
to prevent wedge escapement and to ensure that the wedge is properly 
seated.
    (2) Additional requirements for cranes. Cranes shall be equipped 
with a limit switch to prevent overtravel at the boom tip. Limit 
switches are to be used only to limit travel of loads when operational 
controls malfunction and shall not be used as a substitute for other 
operational controls.
    (3) Additional requirements for hoists. (i) Hoists shall be 
designed so that the load hoist drum is powered in both directions of 
rotation, and so that brakes are automatically applied upon power 
release or failure.
    (ii) Control levers shall be of the ``deadman type'' which return 
automatically to their center (neutral) position upon release.
    (iii) When a hoist is used for both personnel hoisting and material 
hoisting, load and speed ratings for personnel and for materials shall 
be assigned to the equipment.
    (iv) Material hoisting may be performed at speeds higher than the 
rated speed for personnel hoisting if the hoist and components have 
been designed for such higher speeds and if shaft conditions permit.
    (v) Employees shall not ride on top of any cage, skip or bucket 
except when necessary to perform inspection or maintenance of the 
hoisting system, in which case they shall be protected by a body belt/
harness system to prevent falling.
    (vi) Personnel and materials (other than small tools and supplies 
secured in a manner that will not create a hazard to employees) shall 
not be hoisted together in the same conveyance. However, if the 
operator is protected from the shifting of materials, then the operator 
may ride with materials in cages or skips which are designed to be 
controlled by an operator within the cage or skip.
    (vii) Line speed shall not exceed the design limitations of the 
systems.
    (viii) Hoists shall be equipped with landing level indicators at 
the operator's station. Marking the hoist rope does not satisfy this 
requirement.
    (ix) Whenever glazing is used in the hoist house, it shall be 
safety glass, or its equivalent, and be free of distortions and 
obstructions.
    (x) A fire extinguisher that is rated at least 2A:10B:C (multi-
purpose, dry chemical) shall be mounted in each hoist house.
    (xi) Hoist controls shall be arranged so that the operator can 
perform all operating cycle functions and reach the emergency power 
cutoff without having to reach beyond the operator's normal operating 
position.
    (xii) Hoists shall be equipped with limit switches to prevent 
overtravel at the top and bottom of the hoistway.
    (xiii) Limit switches are to be used only to limit travel of loads 
when operational controls malfunction and shall not be used as a 
substitute for other operational controls.
    (xiv) Hoist operators shall be provided with a closed-circuit voice 
communication system to each landing station, with speaker microphones 
so located that the operator can communicate with individual landing 
stations during hoist use.
    (xv) When sinking shafts 75 feet (22.86 m) or less in depth, cages, 
skips, and buckets that may swing, bump, or snag against shaft sides or 
other structural protrusions shall be guided by fenders, rails, ropes, 
or a combination of those means.
    (xvi) When sinking shafts more than 75 feet (22.86 m) in depth, all 
cages, skips, and buckets shall be rope or rail guided to within a rail 
length from the sinking operation.
    (xvii) Cages, skips, and buckets in all completed shafts, or in all 
shafts being used as completed shafts, shall be rope or rail-guided for 
the full length of their travel.
    (xviii) Wire rope used in load lines of material hoists shall be 
capable of supporting, without failure, at least five times the maximum 
intended load or the factor recommended by the rope manufacturer, 
whichever is greater. Refer to Sec.  1926.552(c)(14)(iii) of this part 
for design factors for wire rope used in personnel hoists. The design 
factor shall be calculated by dividing the breaking strength of wire 
rope, as reported in the manufacturer's rating tables, by the total 
static load, including the weight of the wire rope in the shaft when 
fully extended.
    (xix) A competent person shall visually check all hoisting 
machinery, equipment, anchorages, and hoisting rope at the beginning of 
each shift and during hoist use, as necessary.
    (xx) Each safety device shall be checked by a competent person at 
least weekly during hoist use to ensure suitable operation and safe 
condition.
    (xxi) In order to ensure suitable operation and safe condition of 
all functions and safety devices, each hoist assembly shall be 
inspected and load-tested to 100 percent of its rated capacity: at the 
time of installation; after any repairs or alterations affecting its 
structural integrity; after the operation of any safety device; and 
annually when in use. The employer shall prepare a certification record 
which includes the date each inspection and load-test was performed; 
the signature of the person

[[Page 49730]]

who performed the inspection and test; and a serial number or other 
identifier for the hoist that was inspected and tested. The most recent 
certification record shall be maintained on file until completion of 
the project.
    (xxii) Before hoisting personnel or material, the operator shall 
perform a test run of any cage or skip whenever it has been out of 
service for one complete shift, and whenever the assembly or components 
have been repaired or adjusted.
    (xxiii) Unsafe conditions shall be corrected before using the 
equipment.
    (4) Additional requirements for personnel hoists. (i) Hoist drum 
systems shall be equipped with at least two means of stopping the load, 
each of which shall be capable of stopping and holding 150 percent of 
the hoist's rated line pull. A broken-rope safety, safety catch, or 
arrestment device is not a permissible means of stopping under this 
paragraph.
    (ii) The operator shall remain within sight and sound of the 
signals at the operator's station.
    (iii) All sides of personnel cages shall be enclosed by one-half 
inch (12.70 mm) wire mesh (not less than No. 14 gauge or equivalent) to 
a height of not less than 6 feet (1.83 m). However, when the cage or 
skip is being used as a work platform, its sides may be reduced in 
height to 42 inches (1.07 m) when the conveyance is not in motion.
    (iv) All personnel cages shall be provided with a positive locking 
door that does not open outward.
    (v) All personnel cages shall be provided with a protective canopy. 
The canopy shall be made of steel plate, at least 3/16-inch (4.763 mm) 
in thickness, or material of equivalent strength and impact resistance. 
The canopy shall be sloped to the outside, and so designed that a 
section may be readily pushed upward to afford emergency egress. The 
canopy shall cover the top in such a manner as to protect those inside 
from objects falling in the shaft.
    (vi) Personnel platforms operating on guide rails or guide ropes 
shall be equipped with broken-rope safety devices, safety catches or 
arrestment devices that will stop and hold 150 percent of the weight of 
the personnel platform and its maximum rated load.
    (vii) During sinking operations in shafts where guides and safeties 
are not yet used, the travel speed of the personnel platform shall not 
exceed 200 feet (60.96 m) per minute. Governor controls set for 200 
feet (60.96 m) per minute shall be installed in the control system and 
shall be used during personnel hoisting.
    (viii) The personnel platform may travel over the controlled length 
of the hoistway at rated speeds up to 600 feet (182.88 m) per minute 
during sinking operations in shafts where guides and safeties are used.
    (ix) The personnel platform may travel at rated speeds greater than 
600 feet (182.88 m) per minute in completed shafts.
* * * * *

Subpart T--Demolition.

0
3. Revise the authority citation for subpart T of 29 CFR part 1926 to 
read as follows:

    Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and 
Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 
9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 5-2007 (72 
FR 31159), or 1-2012 (77 FR 3912), as applicable.


0
4. Amend Sec.  1926.856 by revising paragraph (c) to read as follows:


Sec.  1926.856  Removal of walls, floors, and material with equipment.

* * * * *
    (c) Cranes, derricks, and other mechanical equipment used must meet 
the requirements specified in subparts N, O, and CC of this part.

0
5. Amend Sec.  1926.858 by revising paragraph (b) to read as follows:


Sec.  1926.858  Removal of steel construction.

* * * * *
    (b) Cranes, derricks, and other hoisting equipment used must meet 
the requirements specified in subparts N and CC of this part.
* * * * *

Subpart DD--[Removed]

0
6. Remove subpart DD.

[FR Doc. 2012-20171 Filed 8-16-12; 8:45 am]
BILLING CODE 4510-26-P