[Federal Register Volume 78, Number 78 (Tuesday, April 23, 2013)]
[Rules and Regulations]
[Pages 23837-23843]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09153]



[[Page 23837]]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. OSHA-2007-0066]
RIN No. 1218-AC61


Cranes and Derricks in Construction: Underground Construction and 
Demolition

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

ACTION: Final rule.

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SUMMARY: On August 17, 2012, OSHA issued a notice of proposed 
rulemaking, as well as a companion direct final rule, that proposed 
applying the requirements in OSHA's 2010 cranes and derricks 
construction standard to underground construction work and demolition 
work. The notice of proposed rulemaking also proposed to correct 
inadvertent errors in the underground construction and demolition 
standards. After receiving a comment recommending that OSHA clarify the 
proposed regulatory text of the demolition standard, OSHA clarified the 
text and is issuing this final rule to apply the cranes and derricks 
standard to underground construction work and demolition work.

DATES: This final rule is effective May 23, 2013. Petitions for review 
of the final rule are due on June 24, 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 document and news releases: This 
Federal Register document, as well as news releases and other relevant 
information, are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Revisions to the Demolition Standard in This Final Rule
III. Revisions to the Underground Construction Standard in This 
Final Rule
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. Background

    On August 17, 2012, OSHA published a direct final rule and a 
companion notice of proposed rulemaking in the Federal Register to 
amend OSHA's construction standards in subpart S (Underground 
Construction, Caissons, Cofferdams, and Compressed Air) and subpart T 
(Demolition) of OSHA's construction standards at 29 CFR part 1926 (77 
FR 49722; 77 FR 49741). The amendments apply subpart CC (Cranes and 
Derricks in Construction) of 29 CFR part 1926, which contains 
requirements for cranes and derricks used in construction, to 
underground construction work, and demolition work, involving equipment 
covered by subpart CC. Further, the direct final rule and notice of 
proposed rulemaking corrected inadvertent errors made to the 
underground construction and demolition standards in the 2010 
rulemaking.
    In both the proposed rule and the direct final rule, OSHA stated 
that it would treat comments received on the direct final rule as 
comments on the proposed rule, and comments received on the proposed 
rule as comments on the direct final rule. OSHA received two comments 
on the documents. The first comment addressed the timing of the 
implementation and enforcement of the operator-certification provisions 
of subpart CC (OSHA-2007-0066-0428). Specifically, the commenter 
claimed that extending the existing operator-certification requirement 
in subpart CC to crane operators in North Dakota who perform 
underground construction work or demolition work will make the task of 
certifying all crane operators in that state more difficult because of 
the limited number of certified examiners and qualified trainers 
available in that state.
    OSHA is not revising the final rule in response to this comment. 
This comment did not challenge the application of the subpart CC 
standard to underground construction work or demolition work. Moreover, 
OSHA does not believe that requiring employers engaged in underground 
construction work or demolition work to meet the operator-certification 
requirements of subpart CC will substantially impact the availability 
of examiners or trainers in the commenter's state, or any other state 
in OSHA's jurisdiction, and the commenter did not provide any evidence 
to the contrary. The bulk of construction crane work already is subject 
to subpart CC. In addition, subpart CC already requires certification 
of any crane operator who performs other kinds of construction work, in 
addition to underground construction or demolition. As OSHA recognized 
in the preambles to its August 17, 2012, direct final rule and notice 
of proposed rulemaking, applying subpart CC to underground construction 
work and demolition work benefits contractors who also perform other 
work because they will be subject to a single standard instead of 
having some of their activities covered under subpart CC and other work 
covered by the temporary requirements in subpart DD (77 FR 49722, 
49725; 77 FR 49741, 49745).\1\
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    \1\ Subpart DD of 29 CFR part 1926, which OSHA drafted during 
the 2010 cranes rulemaking as a temporary measure to preserve the 
requirements of the former crane standard at Sec.  1926.550 for 
application to underground construction work and demolition work, 
has been removed.
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    Finally, OSHA's provisions regarding operator certification do not 
take effect until November 10, 2014. OSHA will continue to work with 
accredited testing organizations as the November 10, 2014, 
implementation date approaches to ensure that employers are able to 
meet the operator-certification requirements of subpart CC.
    The second comment raised a concern about potential ambiguity in 
the introductory language of OSHA's proposed demolition standard. The 
commenter noted that the amendment to Sec.  1926.800(t) of subpart S 
(Underground Construction, Caissons, Cofferdams, and Compressed Air) 
uses the phrase ``employers must,'' while Sec. Sec.  1926.856(c) and 
1926.858(b) of subpart T (Demolition) use the phrase ``Cranes, 
derricks, and other mechanical equipment used must.'' The commenter 
stated that the regulated community could misread the latter phrase to 
mean that only the equipment must comply with the provisions in subpart 
CC, and

[[Page 23838]]

that employers involved in demolition work would not have to comply 
with the requirements in subpart CC that do not apply to equipment. 
Reading the proposed language in this manner would mean that many of 
the essential protective requirements in subpart CC would not apply to 
the employers, including requirements for operating equipment, operator 
certification and other personnel qualifications, inspections, and 
other requirements that do not relate to the design or function of 
equipment. The commenter recommended that OSHA use consistent language 
for all areas addressed by subpart CC.
    Reading the proposed language to apply only to equipment is not 
consistent with OSHA's past application of similar language, or with 
the stated purpose of this rulemaking. OSHA means for subpart CC to 
apply as a comprehensive regulatory scheme, as it made clear in the 
preambles of its August 17, 2012, direct final rule and proposed rule: 
OSHA ``designed the final rule for cranes and derricks in construction, 
codified at 29 CFR part 1926, subpart CC, to replace the earlier rule 
(Sec.  1926.550) for all construction work'' (77 FR 49722, 49723; 77 FR 
49741, 49743) and to ``bring all crane and derrick use in construction 
work under new subpart CC'' (77 FR 49722, 49724; 77 FR 49741, 49743). 
The 2010 final cranes rule contains many important requirements 
regarding personnel qualifications and responsibilities, including: 
operator-certification requirements at Sec.  1926.1427, requirements 
for signal persons at Sec. Sec.  1926.1409-.1412 and 1926.1428, and 
requirements for operating the equipment at Sec.  1926.1417. OSHA 
emphasized the importance of applying all of subpart CC to demolition 
work. The Agency explained that doing so ``would 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,'' and that ``construction workers in those sectors 
receive the same safety protections from new subpart CC as other 
construction workers'' (77 FR 49722, 49725; 77 FR 49741, 49744-45). The 
final economic analysis for the final cranes standard, which estimated 
the cost of all of the requirements in the final cranes rule for 
industries involved in demolition work (see Section V.A (Final Economic 
Analysis and Final Regulatory Flexibility Analysis) below), is 
identical to the analysis provided with the draft final rule and 
proposed rule, and also demonstrates that OSHA always intended that 
subpart CC apply comprehensively to underground construction and 
demolition work in construction.

II. Revisions to the Demolition Standard in This Final Rule

    OSHA believes that the language in Sec.  1926.856(c) and Sec.  
1926.858(b) of the proposed rule adequately specifies that the full 
scheme of requirements for cranes and derricks used in construction, 
including requirements for personnel qualifications and 
responsibilities, applies to demolition work. In addition, for the 
reasons stated in the proposed rule, OSHA concludes it is appropriate 
to apply those requirements to demolition. However, OSHA agrees that 
adopting different language similar to that in the Sec.  1926.800(t) 
amendment would clarify application of the provisions. Therefore, to 
avoid any ambiguity, OSHA is amending the demolition standard by adding 
subparagraph headings and replacing the ``equipment used must'' 
language in both Sec. Sec.  1926.856(c) and 1926.858(b) with a 
reference to the employer's duty to comply with all subpart CC 
requirements.
    OSHA is making the other minor, proposed revisions to the 
demolition rule for the reasons explained in the preamble to the 
proposed rule. These revisions include reinserting into Sec.  1926.858 
the requirement to comply with subpart N, in addition to subpart CC, of 
29 CFR part 1926.

III. Revisions to the Underground Construction Standard in This Final 
Rule

    OSHA is not making any revisions to the underground construction 
standard other than the revisions specified in the proposed rule; OSHA 
is including those revisions for the reasons explained in the preamble 
to the proposed rule (see 77 FR 49724-49725). Most significantly, OSHA 
is requiring employers using cranes and derricks in underground 
construction to comply with all of the requirements in subpart CC. OSHA 
also is correcting several inadvertent errors in the underground 
construction standard by making several minor grammatical corrections 
and 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 
requiring them to demonstrate that conventional means of access are 
more hazardous or impossible for this purpose. OSHA also is correcting 
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 (t)(4).

IV. Agency Determinations

A. Final Economic Analysis and Final Regulatory Flexibility Analysis

    When it issued the final cranes rule 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 Order 
12866 (58 FR 51735). OSHA also published a Final Regulatory Flexibility 
Analysis 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, owned without 
rental, or leased. As a result, both analyses covered all cranes 
engaged in construction activities, including cranes engaged in 
underground construction work 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 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 final rule, the conclusions in the earlier 
FEA are valid for this final rule. The reference to the FEA for the 
final cranes rule, therefore, establishes that this 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 final rule; OSHA 
included these operations in the FEA for the final cranes standard. 
Therefore, OSHA believes that this final rule also complies with 
Executive Orders 12866 and Executive Order 13563.
    To determine if this 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 final rule. This final rule affects two construction 
sectors: NAICS 237990 (Other Heavy and Civil Engineering

[[Page 23839]]

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 demolition because OSHA planned to apply 
subpart CC to these operations. OSHA will report here the results for 
the entire heavy-and-civil engineering sector and the entire site-
preparation sector, which will inevitably involve greater costs and 
impacts than for the activities addressed in this final rule because 
employers included in the heavy-and-civil engineering sector, or the 
site-preparation sector, have many cranes and crane jobs that do not 
involve underground construction or demolition activities. Table B-9 of 
the FEA shows 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 shows that NAICS 238910, which contains 
all crane operations involving demolition, 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 cost for both sectors is $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 sectors will be greater than 
the actual costs of this final rule. Based on these costs, OSHA 
concludes that this final rule is not a significant rule under either 
E.O. 12866 or the Unfunded Mandates Act. OSHA reached the same 
conclusion in its preliminary analysis of the demolition standard 
published in the preamble of the proposed rule on August 17, 2012, and 
requested comment. OSHA did not receive any comments on this issue.
    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 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, which includes all demolition operations involving 
cranes, costs were 0.18 percent of revenues and 4.05 percent of 
profits. (Table B-12 of the FEA, and the FEA as a whole, provide the 
full calculations and derivations.) The FEA from the 2010 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 (DC 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 2010 FEA included the costs of this 
underground construction and demolition final rule, which was only one 
part of the overall costs of the 2010 final rule, and OSHA considered 
the total cost of the 2010 final rule to be economically feasible, OSHA 
concludes that the FEA for this underground construction and demolition 
final rule is economically feasible. OSHA included the same conclusion 
in its preliminary economic analysis of the underground construction 
and demolition proposed rule and requested comment on that conclusion 
(77 FR 49746), but did not receive any comments on this issue.

    Tables B-14 and B-15 of the FEA for the cranes and derricks final 
rule examine the costs as a percentage of revenues and as a percentage 
of profits in these two sectors for small firms as defined by the Small 
Business Administration, and very small entities with fewer 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 cranes, for which 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 final rule clearly are well below these 
thresholds.

[[Page 23840]]

OSHA reached the same conclusion in its preliminary economic analysis 
of the proposed amendments to the underground construction and 
demolition standards (77 FR 49746), and requested comment on that 
conclusion, but did not receive any comments. OSHA, therefore, 
certifies that this 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 cranes 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 \2\ 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).\3\
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    \2\ 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).
    \3\ This request, OMB's 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.
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    This final rule requires no additional collections of 
information.\4\ OMB's approval of OSHA's ICR under Control Number 1218-
0261 already covers all collections of information required by this 
final rule, and OSHA does not believe it is necessary to submit a new 
ICR to OMB seeking to collect additional information under this final 
rule. OSHA made the same determinations in the proposed rule (77 FR 
49746) and requested comment on these determinations, but did not 
receive any comments.
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    \4\ 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 
deduct 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 work and demolition work.
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    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 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. 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. 
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 underground construction work or demolition work; therefore, 
this final rule complies with Executive Order 13132. OSHA included this 
determination in the proposed rule (77 FR 49747), and did not receive 
any comment. In states without an OSHA-approved State Plan, any 
standard developed from this 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 a 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 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 in this final rule will result in more stringent 
requirements for cranes and derricks used in underground construction 
or demolition work. Therefore, states and territories with approved 
State Plans must adopt comparable amendments to their standards for 
cranes and derricks used in underground construction or demolition 
within six months of the effective date of this final rule 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 2010 final rule for cranes and derricks in 
construction, it reviewed the rule according to the Unfunded Mandates

[[Page 23841]]

Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive Order 
13132 (64 FR 43255) (Aug. 10, 1999). OSHA concluded that the final rule 
for cranes and derricks in construction 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. 75 FR 48130. OSHA further 
noted that the final rule for cranes and derricks in construction 
imposed costs of over $100 million per year on the private sector and, 
therefore, required review under the UMRA for those costs; OSHA 
determined that its final economic analysis met that requirement.
    As discussed above in Section V.A (Final Economic Analysis and 
Final Regulatory Flexibility Analysis) of this preamble, this 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 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 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 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 2010 final rule, OSHA made such a determination with respect 
to the use of cranes and derricks in construction, while at the same 
time noting that the Agency would apply subpart CC to the activities 
addressed in this final rule (75 FR 47913, 47920-21).
    This final rule will not reduce the employee protections put in 
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 underground construction or 
demolition receive the same safety protections from recently published 
subpart CC as other construction workers. OSHA explained in the 
proposed rule that 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 former subpart DD. This action, therefore, will clarify 
employer obligations by applying a single cranes and derricks standard 
to all construction work, including demolition and underground 
construction projects. 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 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 Avenue NW., Washington, DC 20210, authorized the 
preparation of this document. OSHA is issuing this document pursuant to 
29 U.S.C. 653, 655, and 657, 40 U.S.C. 3701 et seq., 5 U.S.C. 553, 
Secretary of Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 
CFR part 1911.

    Signed at Washington, DC, on April 12, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

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

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart S--Underground Construction, Caissons, Cofferdams, and 
Compressed Air

0
1. The authority citation for subpart S of 29 CFR part 1926 continues 
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 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

[[Page 23842]]

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 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 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 (t).
    (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)

[[Page 23843]]

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. The authority citation for subpart T of 29 CFR part 1926 continues 
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. Employers 
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. Employers must 
meet the requirements specified in subparts N and CC of this part.
* * * * *
[FR Doc. 2013-09153 Filed 4-22-13; 8:45 am]
BILLING CODE 4510-26-P