Cranes and Derricks in Construction: Revising the Exemption for Digger Derricks, 32110-32116 [2013-12665]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)]
[Rules and Regulations]
[Pages 32110-32116]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12665]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. OSHA-2012-0025]
RIN 1218-AC75


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

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

ACTION: Final rule.

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SUMMARY: OSHA published a direct final rule and a companion notice of 
proposed rulemaking on November 9, 2012, to broaden the exemption for 
digger derricks in its construction standard for cranes and derricks. 
OSHA received a significant adverse comment on the direct final rule 
during the comment period, and as a result, OSHA withdrew the direct 
final rule on February 7, 2013. After considering this comment, OSHA is 
issuing this final rule based on the notice of proposed rulemaking.

DATES: This final rule is effective on June 28, 2013.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), OSHA designates the 
Associate Solicitor of Labor for Occupational Safety and Health as the 
recipient of petitions for review of the final rule. Contact Joseph M. 
Woodward, Associate Solicitor, at the Office of the Solicitor, Room S-
4004, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone: (202) 693-5445.

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: This 
Federal Register notice, as well as news releases and other relevant 
information, are available at OSHA's Web page at https://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Discussion of the Digger-Derrick Exemption in 29 CFR 1926 Subpart 
CC
    A. Background
    B. Comment on the Proposed Rule and Withdrawal of the Direct 
Final Rule
    C. Agency Decision To Issue a Final Rule
    D. Revisions to the Text of the Exemption in 29 CFR 
1926.1400(c)(4)
    E. Discussion of Conforming Revisions to 29 CFR 1926 Subpart V
II. Agency Determinations
    A. Significant Risk
    B. Final Economic Analysis and Final Regulatory Flexibility 
Analysis
    C. Technological Feasibility
    D. Paperwork Reduction Act of 1995
    E. Federalism
    F. State Plan States
    G. Unfunded Mandates Reform Act
    H. Consultation and Coordination With Indian Tribal Governments
List of Subjects in 29 CFR Part 1926
Authority and Signature
Amendments to Standards

[[Page 32111]]

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

A. Background

    A digger derrick (also called a ``radial boom derrick'') is a 
specialized type of equipment designed to install utility poles. A 
digger derrick typically comes equipped with augers to drill holes for 
the poles, and with a hydraulic boom to lift the poles and set them in 
the holes. Employers also use the booms to lift objects other than 
poles; accordingly, electric utilities, telecommunication companies, 
and their contractors use booms both to place objects on utility poles 
and for general lifting purposes at worksites (Docket ID: OSHA-2007-
0066-0139.1).
    OSHA's current standard for Cranes and Derricks in Construction, 
promulgated in 2010 as 29 CFR part 1926 subpart CC, covers digger 
derricks, but includes a limited exemption for all pole work in the 
electric-utility and telecommunications industries, including placing 
utility poles in the ground and attaching transformers and other 
equipment to the poles (see 29 CFR 1400(c)(4); 75 FR 47906, 47924-
47926, and 48136 (Aug. 9, 2010)). As explained in more detail in the 
preamble to the proposed rule, OSHA developed its 2010 standard through 
a negotiated rulemaking involving stakeholders from many affected 
sectors. In its proposed rule based on the draft standard from the 
stakeholders, OSHA included only a narrow exemption for digger derricks 
used to dig holes. OSHA later expanded the exemption in the 2010 final 
rule in response to commenters who complained that the proposed narrow 
exemption did not include customary uses of the digger derrick that 
involve placing a pole in the hole and attaching transformers and other 
items to the pole (see 75 FR 47906, 47924-47926, and 48136 (Aug. 9, 
2010)).
    In the current digger-derrick exemption to subpart CC, OSHA 
clarifies that employers engaged in exempted digger-derrick 
construction activities must still comply with the applicable worker 
protections in the OSHA standards governing electric-utility and 
telecommunications work at Sec.  1910.268, Telecommunications, and 
Sec.  1910.269, Electric power generation, transmission, and 
distribution. Accordingly, exempt digger-derrick work subject to 29 CFR 
part 1926 subpart V--Power Transmission and Distribution, must comply 
with 29 CFR 1910.269, while digger derricks used in construction work 
for telecommunication service (as defined at 29 CFR 1910.268(s)(40)) 
must comply with 29 CFR 1910.268. When digger-derrick activities are 
exempt from subpart CC of 29 CFR part 1926, employers also must comply 
with all other applicable construction standards, such as 29 CFR part 
1926 subpart O--Motor Vehicles, Mechanized Equipment, and Marine 
Operations, and subpart V.\1\
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    \1\ For telecommunications work, compliance with the provisions 
of Sec.  1910.268 is a condition of the exemption in Sec.  
1926.400(c)(4). The scope limitations in Sec.  1910.268(a) (such as 
the language stating that it does not apply to construction) are 
irrelevant to application of the exemption. When an employer uses a 
digger derrick for telecommunications construction work and does not 
comply with the provisions in Sec.  1910.268, then that employer 
fails to qualify for the exemption in Sec.  1926.400(c)(4). As a 
result, that employer must comply with all of the requirements in 
subpart CC of 29 CFR part 1926, including the operator-certification 
requirements in Sec.  1926.1427. When the employer fails to comply 
with subpart CC, and cannot demonstrate that it complied with Sec.  
1910.268 for telecommunications work, or Sec.  1910.269 for 
electric-utility work, then OSHA will cite the employer under 
subpart CC (not Sec. Sec.  1910.268 or 1910.269). When the employer 
demonstrates that it is complying with the exemption in subpart CC, 
but is not complying with the separate requirements in 29 CFR part 
1926 subpart O, applicable to all motorized vehicles in 
construction, then OSHA will cite the employer under subpart O. Note 
that this explanation does not mean that OSHA is restricting its 
enforcement discretion on whether to issue citations at all.
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    On October 6, 2010, Edison Electrical Institute (EEI) petitioned 
for review of the Cranes and Derricks in Construction standard in the 
U.S. Court of Appeals for the District of Columbia. During subsequent 
discussions with OSHA, EEI provided new information to OSHA regarding 
the use of digger derricks in the electric-utility industry, and the 
impact on utilities' operations of the current digger-derrick exemption 
in subpart CC. According to EEI, the exemption from subpart CC covers 
roughly 95 percent of work conducted by digger derricks in the 
electric-utility industry (see OSHA-2012-0025-0004: EEI Dec. 7, 2010, 
letter, page 2). The majority of work under the remaining 5 percent is 
work closely related to the exempted work (Id.). For example, when 
electric utilities use digger derricks to perform construction work 
involving pole installations, the same digger-derrick crew that 
performs the pole work typically installs pad-mount transformers on the 
ground as part of the same power system as the poles. While the pole 
work is exempt under 29 CFR 1926.1400(c)(4), the placement of the pad-
mount transformers on the ground is not.
    On November 9, 2012, OSHA published a direct final rule and a 
companion proposed rule to broaden the digger-derrick exemption in 
subpart CC to exempt the placement of pad-mount transformers (77 FR 
67313 and 67270 (Nov. 9, 2012)). In these documents, OSHA concluded 
that, compared to currently exempted pole work, most (if not all) of 
the remaining 5 percent of work is at least as safe (77 FR 67315 and 
67272). Weight measurements provided by EEI demonstrate that 
transformers placed on a pad on the ground are roughly the same weight 
as, or in some cases lighter than, the weight of the transformers 
lifted onto the poles or the poles themselves (see OSHA-2012-0025-0003: 
EEI handout, ``Typical Weights'' chart).\2\ In addition, OSHA explained 
that electric utilities typically place distribution transformers in a 
right of way along front property lines, close to a roadway, or along 
rear property lines, irrespective of whether the transformers are pole 
mounted or pad mounted (77 FR 67315 and 67272). In these cases, the 
lifting radius of a digger derrick placing a transformer on a pad is 
similar to the lifting radius of a digger derrick placing a transformer 
on a pole (Id.). Consequently, the lifting forces on a digger derrick 
should be approximately the same regardless of whether the transformer 
is pole mounted or pad mounted (see, e.g., OSHA-2012-0025-0003). 
Finally, OSHA noted that the approximate height of the transformer 
relative to the employee installing the transformer is the same for the 
two types of transformers (Id.). An employee installing a pad-mounted 
transformer is on the ground, near the pad, whereas an employee 
installing a pole-mounted transformer is either on the pole, or in an 
aerial lift, near the mounting point for the transformer. In either 
case, the transformer would be near the same height as the employee. 
OSHA received no comments challenging these statements.
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    \2\ OSHA noted that EEI's chart does not show weights for 
concrete and plastic transformer pads, and EEI did not indicate that 
utilities use digger derricks to place these pads (77 FR 67315 and 
67272). When utilities use digger derricks to lift these pads, EEI's 
presentation indicates that the digger derricks lift the 
transformers separately. Because the surface area of these pads is 
comparable to the transformers on them, and because these pads are 
generally only a few hundred millimeters thick, OSHA stated its 
belief that the pads did not weigh any more than transformers or 
poles (Id.). OSHA received no comments indicating that these 
assumptions were invalid.
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    OSHA also noted EEI's concerns about how the limited exemption 
failed to produce a significant economic savings for the electric-
utility industry. Because the same workers generally perform both types 
of work, utility employers would, when the standard becomes fully 
effective in November 2014, incur the cost of meeting all of the

[[Page 32112]]

other requirements in subpart CC, including the operator-certification 
requirements, for those workers who perform the 5 percent of work not 
currently exempted from subpart CC. OSHA noted that compliance with the 
entire standard could result in a sizable cost to the electric-utility 
industry (about $21.6 million annually) for an activity that does not 
appear significantly more dangerous than the type of activity that OSHA 
already exempts, and that OSHA did not consider this result when it 
promulgated the 2010 standard (77 FR 67315 and 67272) (see Section 
IV.B. in this preamble for a summary of these costs). OSHA did not 
receive any comments disputing this economic impact.
    OSHA also notes that the largest labor organization for workers in 
the electric-utility industry, the International Brotherhood of 
Electrical Workers, participated in the settlement discussions and 
corroborated the general validity of the information provided by EEI, 
actively supported EEI's request for an expanded digger-derrick 
exemption, and did not submit any objections to the proposed expansion 
of the digger-derrick exemption.

B. Comment on the Proposed Rule and Withdrawal of the Direct Final Rule

    OSHA received only one comment on the direct final rule published 
on November 9, 2012 ; the comment was from a ``safety professional and 
certified industrial hygienist in safety management'' (see Docket ID: 
OSHA-2012-0025-0008). OSHA previously explained in the direct final 
rule and the companion proposed rule for this rulemaking that it would 
treat a comment on either the direct final rule or the notice of 
proposed rulemaking as comment on both documents. The Agency stated 
further that it would withdraw the direct final rule and determine 
whether it should proceed with the proposed rule if it received a 
significant adverse comment (77 FR 67314 and 67271).
    OSHA explained that a ``significant adverse comment'' is one that 
``explains why the amendments to OSHA's digger-derrick exemption would 
be inappropriate,'' and that withdrawal of the direct final rule would 
be necessary if the comment ``raises an issue serious enough to warrant 
a substantive response in a notice-and-comment process'' (Id.). OSHA 
determined that the comment met that test. As a result, OSHA published 
a withdrawal of the direct final rule on February 7, 2013 (78 FR 8985). 
In the withdrawal notice, OSHA stated that it would address the comment 
in a follow-on final rule based on the companion notice of proposed 
rulemaking. OSHA hereby addresses the significant adverse comment 
received as a comment on the proposed rule, and issues this final rule 
based on the November 9, 2012 notice of proposed rulemaking.
    The comment addresses a single issue in the proposed rule. The 
commenter expressed concern that the exemption for digger derricks 
decreased worker safety by exempting riggers and signal persons working 
with digger derricks from the specific qualification, training, and 
testing requirements contained in subpart CC. Accordingly, the 
commenter urged OSHA to further revise its proposed amendments to 
``include the elements of rigger and signal person qualification, 
training and testing requirements for excluded workers'' (see Docket 
ID: OSHA-2012-0025-0008). Specifically, the commenter requested that 
OSHA amend its proposed conforming amendments to 29 CFR 1926.952, which 
establish the protections that apply to all electric-utility digger-
derrick activities exempted from subpart CC, to include the 
requirements for rigger and signal person qualification, training, and 
testing found currently in subpart CC.
    The comment does not persuade OSHA that a revision to the proposed 
rule is necessary or appropriate. OSHA notes that the commenter did not 
acknowledge that the majority of digger derrick activity in the 
electric-utility industry already is exempt from the subpart CC 
requirements he addresses. The commenter did not distinguish the 5 
percent of digger-derrick activity proposed for exemption by this 
rulemaking from the 95 percent of work performed by digger derricks 
currently exempted from the rigger and signal person qualifications in 
subpart CC. Therefore, the commenter appears to be requesting action 
outside the scope of this rulemaking (i.e., addressing all digger-
derrick work, not just the 5 percent of work proposed for exemption by 
this rulemaking). Additionally, the commenter did not indicate that EEI 
was mistaken in its estimate that 95 percent of the digger-derrick work 
in its industry was already exempt from subpart CC; the commenter also 
did not assert that the dangers posed by the 5 percent of work within 
the scope of this rulemaking are greater than the dangers present in 
the 95 percent of digger-derrick work already exempted. Moreover, the 
commenter did not indicate whether a rigger or signal person would 
typically be necessary to perform the 5 percent of work addressed in 
this rulemaking.
    In addressing his recommended revisions, the commenter discussed 
data he assembled on seven digger-derrick incidents between 2001 and 
2011. The commenter asserted broadly that the presence of signal 
persons and riggers would have prevented these incidents, but did not 
support this assertion with respect to any of the specific incidents. 
When OSHA examined these incidents, it determined that none of them 
involved placing pad-mount transformers on the ground or any other type 
of work exempted by this rulemaking.
    If OSHA retained the qualification, training, and testing 
requirements from subpart CC for the 5 percent of utility work subject 
to this rulemaking, it would be imposing unwarranted costs on employers 
and perpetuating the problem that EEI identified when it requested the 
expanded exemption. Under this approach, 95 percent of utility work 
would remain exempt from these requirements, while 5 percent of this 
work would not be exempt; nevertheless, utility employers would incur 
the full cost of meeting all of the qualification, training, and 
testing requirements in subpart CC for signal persons and riggers to 
assist with 5 percent of the work. More importantly, employers would 
incur these costs even though there is no evidence that the dangers 
present in the 5 percent of the work are greater than those presented 
in the 95 percent of digger-derrick work already exempted.
    In addition, although the commenter expressed concern about the 
absence of subpart CC qualification, training, and testing requirements 
for exempt digger-derrick activities, OSHA notes that any digger-
derrick activity exempted from subpart CC will still be subject to the 
training requirements and other requirements in subpart V. Subpart V 
addresses the hazards present in electric-utility work, particularly 
the hazards of electrocution raised by the commenter. In at least 
several of the incidents cited by the commenter, it appears that 
compliance with existing OSHA standards would have prevented the 
injury.
    In summary, OSHA finds that there is no evidence that the dangers 
present in the 5 percent of the work are greater than the hazards 
present in the 95 percent of digger-derrick work already exempted from 
subpart CC. Moreover, OSHA's analysis indicates that the incidents 
cited by the commenter did not involve work exempted by this final 
rule. In addition, there is no evidence that the subpart CC training 
and

[[Page 32113]]

qualification requirements recommended by the commenter would have 
prevented those incidents.

C. Agency Decision To Issue a Final Rule

    Based on the rulemaking record as a whole, OSHA concludes that it 
is appropriate to proceed with the proposed rule and remove the burdens 
imposed on employers by the remaining 5 percent of non-exempt work. 
Therefore, OSHA is expanding the digger-derrick exemption to include 
all digger derricks used in construction work subject to 29 CFR part 
1926 subpart V. Based on its estimates in the Final Economic Analysis 
provided in the 2010 final rule, the Agency determines that expanding 
the exemption for digger derricks will enable employers in NAICS 221120 
(Electric Power Generation) to avoid compliance costs of about $15.9 
million per year, while employers in NAICS 221110 (Electric Power 
Transmission, Control, and Distribution) will avoid compliance costs of 
about $5.7 million per year, for a total cost savings of about $21.6 
million annually.
    When the Agency promulgated the final Cranes and Derricks in 
Construction rule, OSHA's primary concern about extending the digger-
derrick exemption beyond pole work was that such action would provide 
employers with an incentive to use digger derricks on construction 
sites to perform construction tasks normally handled by cranes--tasks 
that are beyond the original design capabilities of a digger derrick. 
In discussing this concern, OSHA stated, ``[T]he general lifting work 
done at those other worksites would be subject to this standard if done 
by other types of lifting equipment, and the same standards should 
apply as apply to that equipment . . . .'' (75 FR 47925). OSHA 
acknowledges that revising the exemption would extend the digger-
derrick exemption to include some work at substations. However, EEI 
indicated that employers in the electric-utility industry limit such 
uses to assembly or arrangement of substation components, and that 
these employers use other types of cranes instead of digger derricks to 
perform lifting and installation work at substations (see OSHA-2012-
0025-0005: Jan. 2011 EEI letter). If OSHA finds that employers are 
using digger derricks increasingly for other tasks, the Agency may 
revisit this issue and adjust the exemption accordingly.

D. Revisions to the Text of the Exemption in 29 CFR 1926.1400(c)(4)

    OSHA is revising the exemption in existing 29 CFR 1926.1400(c)(4) 
to include within the exemption the phrase ``any other work subject to 
subpart V of 29 CFR part 1926'' as proposed. This revision expands the 
exemption to remove from coverage under subpart CC of 29 CFR part 1926 
the types of non-pole, digger-derrick work described by EEI. The Agency 
also is making several minor clarifications to the text of the 
exemption. First, OSHA is replacing ``and'' with ``or'' in the phrase 
``poles carrying electric or telecommunication lines'' (emphasis 
added). This revision will ensure that the regulated community does not 
misconstrue the exemption as limited to poles that carry both electric 
and telecommunications lines. This clarification is consistent with 
OSHA's explanation in the preamble of the final Cranes and Derricks in 
Construction rule (see 75 FR 47925).
    Second, OSHA is adding the phrase ``to be eligible for this 
exclusion'' at the beginning of the sentence requiring compliance with 
subpart V of 29 CFR part 1926 and Sec.  1910.268. This revision limits 
the exemption to the use of digger derricks that comply with the 
requirements in subpart V or Sec.  1910.268. If an employer uses a 
digger derrick for subpart V or telecommunications work without 
complying with all of the requirements in subpart V or Sec.  1910.268, 
then the work is not exempt and the employer must comply with all of 
the requirements of subpart CC of 29 CFR part 1926. This clarification 
is consistent with OSHA's explanation of the exemption in the preamble 
of the final rule (see 75 FR 47925-47926).
    Third, in Sec.  1926.1400(c)(4) of this final rule, OSHA is 
replacing the reference to Sec.  1910.269 with a reference to subpart 
V. This revision is not substantive in that electric-utility employers 
having activities that fall within the digger-derrick exemption 
currently must comply with subpart V because the exempt activity is 
subpart V work, and they also must comply currently with Sec.  1910.269 
because subpart V requires them to do so (see 29 CFR 1926.952(c)(2)). 
By replacing the reference to Sec.  1910.269 in the Sec.  
1926.1400(c)(4) exemption with a reference to subpart V, OSHA is 
removing any implication that these employers need only comply with 
Sec.  1910.269 and not with all subpart V requirements, including 
subpart O requirements for motorized vehicles.

E. Discussion of Conforming Revisions to 29 CFR 1926 Subpart V

    As part of the harmonizing process mentioned in the previous 
section, OSHA in this final rule also is revising Sec.  1926.952(c)(2) 
in subpart V, which requires compliance with Sec.  1910.269 for all 
digger-derrick work exempted from subpart CC, including compliance with 
Sec. Sec.  1910.269(p), Mechanical equipment, 1910.269(a)(2), Training, 
and 1910.269(l), Working on or near exposed energized parts. When OSHA 
promulgated subpart CC of 29 CFR 1926 in 2010, the Agency also revised 
Sec.  1926.952(c)(2) (75 FR 48135). This revision mirrored the 
terminology in the digger-derrick exemption at Sec.  1926.1400(c)(4), 
and required employers using digger derricks so exempted to comply with 
Sec.  1910.269. In making this revision, the Agency explained that it 
revised Sec.  1926.952(c) to require digger derricks to comply with 
Sec.  1910.269 to provide ``comparable safety requirements'' (Id.).
    OSHA is revising Sec.  1926.952(c)(2) in this final rule so that it 
continues to mirror the updated terminology in the digger-derrick 
exemption at Sec.  1926.1400(c)(4). As part of the revision to Sec.  
1926.952(c)(2), OSHA is clarifying that the requirement to comply with 
Sec.  1910.269 is in addition to, not in place of, the general 
requirement in Sec.  1926.952(c) that all equipment (including digger 
derricks) must comply with subpart O of 29 CFR part 1926.

II. Agency Determinations

A. Significant Risk

    The purpose of the Occupational Safety and Health Act of 1970 (OSH 
Act; 29 U.S.C. 651 et al.) is ``to assure so far as possible every 
working man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources'' (29 U.S.C. 651(b)). To 
achieve this goal, Congress authorized the Secretary of Labor to 
promulgate and enforce occupational safety and health standards (29 
U.S.C. 654(b), 655(b)). An occupational safety or health standard is a 
standard that ``requires conditions, or the adoption or use of one or 
more practices, means, methods, operations, or processes, reasonably 
necessary or appropriate to provide safe or healthful employment and 
places of employment'' (29 U.S.C. 652(8)). A standard is reasonably 
necessary or appropriate within the meaning of Section 652(8) when it 
substantially reduces or eliminates significant risk (see Industrial 
Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 
(1980)).

[[Page 32114]]

    This final rule does not impose any additional requirements on 
employers. It, therefore, does not require an additional significant 
risk finding (see Edison Electric Institute v. OSHA, 849 F.2d 611, 620 
(DC Cir. 1988)). Moreover, for the reasons explained above, OSHA 
believes that adopting the proposed rule will not adversely affect 
safety.

B. Final Economic Analysis and Final Regulatory Flexibility Act 
Analysis

    When it issued the final rule for Cranes and Derricks in 
Construction in 2010, OSHA prepared a Final Economic Analysis (FEA) as 
required by the Occupational Safety and Health Act of 1970 (``OSH 
Act''; 29 U.S.C. 651 et seq.) and Executive Orders 12866 (58 FR 51735 
(Sept. 30, 1993) and 13563 (76 FR 3821 (Jan. 21, 2011)). OSHA also 
published a final regulatory flexibility analysis as required by the 
Regulatory Flexibility Act (5 U.S.C. 601-612).
    In the FEA for the 2010 final rule (OSHA-2007-0066-0422), the 
Agency estimated that there were about 10,000 crane operators in NAICS 
221110 (Electric Power Generation), and about 20,000 crane operators in 
NAICS 221120 (Electric Power Transmission, Control, and Distribution). 
OSHA based these figures on estimates of the number of construction 
work crews in these industries from its subpart V Preliminary Economic 
Analysis, with an allowance (to assure maximum flexibility) that there 
be three trained crane operators for every work crew (see 75 FR 48084). 
Based on submissions to the record, OSHA estimated that 85 percent of 
these 30,000 operators (25,500) worked on digger derricks, while 15 
percent of the operators operated truck-mounted cranes, or boom trucks; 
therefore, a total of 25,500 digger-derrick operators would require 
operator certification (Id.).
    In its FEA for the 2010 final rule, OSHA estimated that the annual 
total costs for NAICS 221110 would be $6.7 million ($4 million for 
operator certification), and the annual total costs for NAICS 221120 
would be $18.7 million ($8.7 million for operator certification) (see 
FEA Table B-9 at 77 FR 48103). Fully exempting digger derricks from the 
scope of the standard also eliminates costs for other activities 
besides operator certification, such as inspections and power-line 
safety. In the 2010 FEA, the two main cost components for an industry 
were the number of crane operators and the number of jobs involving 
cranes. That FEA estimated that digger derricks represented 85 percent 
of operators, and 85 percent of jobs involving cranes. OSHA, therefore, 
estimates that digger derricks account for 85 percent of the costs 
attributed to NAICS 221110 and NAICS 221120. Applying this 85 percent 
factor to the total costs for the industries yields costs for digger 
derricks of $5.7 million per year in NAICS 221110 and $15.9 million per 
year in NAICS 221120, for a total of $21.6 million per year.\3\
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    \3\ Based on the size of digger derricks and EEI's descriptions 
of digger-derrick activities, OSHA understands that the vast 
majority of digger-derrick use for construction activity in the 
electric-utility industry will involve transmission and distribution 
work subject to subpart V of 29 CFR part 1926. Employers categorized 
under NAICS 221120 generally conduct electric-transmission and 
electric-distribution work. However, OSHA is including digger 
derricks under NAICS 221110, which is the SIC code for power 
generation, because some employers may be under that SIC code when 
their primary work is in that area, but those employers also may 
engage in transmission work covered by subpart V. Because the record 
does not indicate that employers use digger derricks for power-
generation construction activities, OSHA assumes that the use of 
digger derricks under NAICS 221110 is for subpart V work. OSHA 
included this identical explanation in the preamble to the proposed 
rule, and received no comments challenging this assumption.
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    This final rule will eliminate nearly all of the estimated $21.6 
million per year in costs associated with digger derricks. These 
estimated cost savings may be slightly overstated because OSHA noted in 
its 2010 FEA that the cost assumptions might not represent the most 
efficient way to meet the requirements of the rule. However, OSHA 
wanted to assure the regulated community that, even with somewhat 
overstated cost estimates, the rule would still be economically 
feasible.
    At the same time, it does not appear that there will be any 
significant reduction in benefits from the subpart CC rule. In its 2010 
FEA (OSHA-2007-0066-0422), OSHA reported an average of 0.5 crane-
related fatalities per year in SIC codes NAICS 221110 and NAICS 221120. 
However, the 2010 FEA did not indicate that any of these fatalities 
involved digger derricks or other equipment covered by the standard. 
Moreover, in light of the information provided by EEI, there is no 
indication that the additional 5 percent of digger-derrick activity 
exempted through this rulemaking poses any hazard greater than the 
hazard posed by the digger-derrick activities already exempted in the 
2010 final rule.
    Because this rule estimates cost savings of $21.6 million per year, 
this rule is not economically significant within the meaning of 
Executive Order 12866. The rule does not impose additional costs on any 
private-sector or public-sector entity, and does not meet any of the 
criteria for an economically significant or major rule specified by 
Executive Order 12866 and the relevant statutes. This rule is not a 
``major rule'' under Section 804 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.).
    OSHA developed this rule consistent with the provisions of 
Executive Orders 12866 and 13563. Accordingly, this rule follows 
closely the principle of EO 13563 that agencies should use new data 
developed after completion of a rulemaking (retrospective analysis) to 
determine if a regulation ``should be modified, streamlined, expanded, 
or repealed.'' In this case, review of data submitted after completion 
of the initial rulemaking provided OSHA with the opportunity to 
streamline a rule by dropping its application to all digger derricks 
used in the electric-utility industry, thereby saving the industry an 
estimated $21.6 million per year. As described previously, this action 
removes duties and costs for the electric-utility industry, and does 
not impose any new duties on any employer. Because this final rule will 
reduce costs for small entities, the Agency certifies that the final 
standard will not impose significant economic costs on a substantial 
number of small entities.
    OSHA included a similar economic analysis and certification in the 
preamble of the proposed rule and did not receive any comments 
challenging that analysis or the certification. The one comment that 
OSHA received, described earlier in this preamble, suggested that there 
might be additional net savings if OSHA revised the exemption to retain 
qualification, training, and testing requirements for signal persons 
and riggers, but the comment did not dispute OSHA's analysis of the 
cost reductions associated with the exemption as proposed. For the 
reasons explained previously, OSHA determined that it would not revise 
the exemption as requested by the commenter.

C. Technological Feasibility

    A standard is technologically feasible when the protective measures 
it requires already exist, when available technology can bring the 
protective measures into existence, or when that technology is 
reasonably likely to develop (see American Textile Mfrs. Institute v. 
OSHA, 452 U.S. 490, 513 (1981); American Iron and Steel Institute v. 
OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)). This rule does not require 
any additional protective measures. In the 2010 FEA, OSHA found the 
standard to be technologically feasible (75 FR 48079). OSHA concludes 
that this revision is feasible as well because it

[[Page 32115]]

reduces or removes current requirements on employers. OSHA also 
reiterated that finding in the preamble of the proposed rule for this 
rulemaking, and did not receive any comment on that finding.

D. Paperwork Reduction Act of 1995

    When OSHA issued the final rule on August 9, 2010, the Agency 
submitted an Information Collection Request (ICR) to the Office of 
Management and Budget (OMB) titled Cranes and Derricks in Construction 
(29 CFR Part 1926 Subpart CC). On November 1, 2010, OMB approved the 
ICR under OMB Control Number 1218-0261, with an expiration date of 
November 30, 2013. Subsequently, in December 2010, OSHA discontinued 
the Cranes and Derricks Standard for Construction (29 CFR 1926.550) ICR 
(OMB Control Number 1218-0113) because the new ICR superseded that ICR. 
In addition, OSHA retitled the new ICR to Cranes and Derricks in 
Construction (29 CFR Part 1926, Subpart CC and Subpart DD).
    This rule, which expands the digger-derrick exemption, does not 
require any additional collection of information or alter the 
substantive requirements detailed in the 2010 ICR. The only impact on 
the collection of information will be a reduction in the number of 
entities collecting information. OMB did not require OSHA to submit a 
new proposed ICR when OSHA issued the proposed rule, and OSHA does not 
believe it is necessary to submit a new ICR to OMB now. OSHA will 
identify any reduction in burden hours when it renews the ICR. OSHA 
requested comment on this approach in the proposed rulemaking 
describing the digger-derrick exemption, but received none.
    OSHA notes that a federal agency cannot conduct or sponsor a 
collection of information unless it is approved by OMB under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., and the agency 
also displays a currently valid OMB control number for the collection 
of information; the public need not respond to a collection of 
information requirement unless the agency displays a currently valid 
OMB control number. Also, notwithstanding any other provisions of law, 
no person shall be subject to a penalty for failing to comply with a 
collection of information requirement if the requirement does not 
display a currently valid OMB control number.

E. Federalism

    OSHA reviewed this final rule in accordance with the Executive 
Order on Federalism (Executive Order 13132 (64 FR 43255 (Aug. 10, 
1999))), which requires that federal agencies, to the extent possible, 
refrain from limiting state policy options, consult with states prior 
to taking any actions that would restrict state policy options, and 
take such actions only when clear constitutional authority exists and 
the problem is national in scope. Executive Order 13132 provides for 
preemption of state law only with the expressed consent of Congress. 
Federal agencies must limit any such preemption to the extent possible.
    Under Section 18 of the OSH Act (29 U.S.C. 667), Congress expressly 
provides that states may adopt, with federal approval, a plan for the 
development and enforcement of occupational safety and health 
standards. OSHA refers to states that obtain federal approval for such 
a plan 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. 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 concluded in 2010 that its promulgation of subpart CC complies 
with Executive Order 13132 (75 FR 48128 and 48129). Because the current 
rulemaking does not impose any additional burdens, that analysis 
applies to this revision of the digger-derrick exemption. Therefore, 
this final rule complies with Executive Order 13132. In states without 
OSHA-approved state plans, any standard developed from this rule will 
impact state policy options in the same manner as every standard 
promulgated by OSHA. In State Plan States, this rulemaking does not 
limit state policy options.

F. State Plan States

    When federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, the 27 states and U.S. territories 
with their own OSHA-approved occupational safety and health plans must 
amend their standards to reflect the new standard or amendment, or show 
OSHA why such action is unnecessary, e.g., because an existing state 
standard covering this area is at least as effective in protecting 
employees as the new federal standard or amendment (29 CFR 1953.5(a)). 
The state standard must be at least as effective in protecting 
employees as the final federal rule. State Plan States must issue the 
standard within six months of the promulgation date of the final 
federal rule. When OSHA promulgates a new standard or amendment that 
does not impose additional or more stringent requirements than an 
existing standard, State Plan States need not amend their standards, 
although OSHA may encourage them to do so. The 27 states and U.S. 
territories with OSHA-approved occupational safety and health plans 
are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, 
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, 
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, 
Virginia, Washington, and Wyoming. Connecticut, Illinois, New Jersey, 
New York, and the Virgin Islands have OSHA-approved State Plans that 
apply to state and local government employees only.
    The amendments made in this rule do not impose any new requirements 
on employers. Accordingly, State Plan States need not amend their 
standards to incorporate the expanded exemption specified in this rule, 
but they may do so if they so choose.

G. Unfunded Mandates Reform Act

    When OSHA issued the 2010 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.) and Executive Order 
13132. OSHA concluded that the final rule did not meet the definition 
of a ``Federal intergovernmental mandate'' under the UMRA (75 FR 
48130). OSHA's standards do not apply to state or local governments 
except in states that have voluntarily adopted state plans. OSHA 
further noted that the rule imposed costs of over $100 million per year 
on the private sector and, therefore, required review under the UMRA 
for those costs; the Agency determined that its Final Economic Analysis 
met that requirement (Id).
    As discussed above in Section II.B. of this preamble, this rule 
reduces expenditures by private-sector employers. For the purposes of 
the UMRA, OSHA certifies that this 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. OSHA included an identical certification 
in the preamble of the proposed rule, and received no comment 
challenging that certification.

H. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this rule in accordance with Executive Order 13175

[[Page 32116]]

(65 FR 67249 (Nov. 9, 2000)), and determined that it does not have 
``tribal implications'' as defined in that order. This rule does not 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the federal government and Indian tribes, or on 
the distribution of power and responsibilities between the federal 
government and Indian tribes.

List of Subjects in 29 CFR Part 1926

    Cranes and derricks, Construction industry, Electric power, 
Occupational safety and health.

Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, 200 
Constitution Ave. NW., Washington, DC 20210, authorized the preparation 
of this notice. OSHA is issuing this 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 May 22, 2013.
David Michaels
Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons stated in the preamble of this rule, OSHA amends 29 
CFR part 1926 as follows:

PART 1926--[AMENDED]

Subpart V--Power Transmission and Distribution

0
1. Revise the authority citation for subpart V to read as follows:

    Authority:  40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; Secretary 
of Labor's Order Nos. 12-71 (36 FR 8754); 8-76 (41 FR 25059); 9-83 
(48 FR 35736), 1-90 (55 FR 9033), 5-2007 (72 FR 31159), or 1-2012 
(77 FR 3912), as applicable. Section 1926.951 also is issued under 
29 CFR part 1911.



0
2. Amend Sec.  1926.952 by revising paragraph (c)(2) to read as 
follows:


Sec.  1926.952  Mechanical equipment.

* * * * *
    (c) * * *
    (2) Use of digger derricks must comply with Sec.  1910.269 (in 
addition to 29 CFR part 1926, subpart O) whenever 29 CFR part 1926, 
subpart CC, excludes such use in accordance with Sec.  1926.1400(c)(4).
* * * * *

Subpart CC--Cranes and Derricks in Construction

0
3. Revise the authority citation for subpart CC to read as follows:

    Authority:  40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and 
Secretary of Labor's Order No. 5-2007 (72 FR 31159) or 1-2012 (77 FR 
3912), as applicable; and 29 CFR part 1911.



0
4. Amend Sec.  1926.1400 by revising paragraph (c)(4) to read as 
follows:


Sec.  1926.1400  Scope.

* * * * *
    (c) * * *
    (4) Digger derricks when used for augering holes for poles carrying 
electric or telecommunication lines, placing and removing the poles, 
and for handling associated materials for installation on, or removal 
from, the poles, or when used for any other work subject to subpart V 
of this part. To be eligible for this exclusion, digger-derrick use in 
work subject to subpart V of this part must comply with all of the 
provisions of that subpart, and digger-derrick use in construction work 
for telecommunication service (as defined at Sec.  1910.268(s)(40)) 
must comply with all of the provisions of Sec.  1910.268.
* * * * *
[FR Doc. 2013-12665 Filed 5-28-13; 8:45 am]
BILLING CODE 4510-26-P